Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1907, (In two parts), Part II

[Untitled]

[undated]

Hon. Elihu Root,
Secretary of State.

Sir: Pursuant to a request of the Interparliamentary Union, held at St. Louis in 1904, that a future peace conference be held and that the President of the United States invite all nations to send representatives to such a conference, the late Secretary of State, at the direction of the President, instructed, on October 21, 1904, the representatives of the United States accredited to each of the signatories to the acts of the The Hague Conference of 1899 to present overtures for a second conference to the ministers for foreign affairs of the respective countries.

The replies received to this circular instruction of October 21, 1904, indicated that the proposition for the calling of a second conference met with general favor. At a later period it was intimated by Russia that the initiator of the first Conference was, owing to the restoration of peace in the Orient, disposed to undertake the calling of a new conference to continue as well as to supplement the work of the first. The offer of the Czar to take steps requisite to convene a second international peace conference was gladly welcomed by the President, and the final act of the conference only recites in its preamble the invitation of the President.

The Russian Government thus assumed the calling of the conference, and on April 12, 1906, submitted the following programme, which was acceptable to the powers generally and which served as the basis of the work of the conference:

1. Improvements to be made in the provisions of the convention relative to the peaceful settlement of international disputes as regards the court of arbitration and the international commissions of inquiry.

2. Additions to be made to the provisions of the convention of 1899 relative to the laws and customs of war on land—among others, those concerning the opening of hostilities, the rights of neutrals on land, etc. Declaration of 1899. One of these having expired, question of its being revived.

3. Framing of a convention relative to the laws and customs of maritime warfare, concerning—

The special operations of maritime warfare, such as the bombardment of ports, cities, and villages by a naval force; the laying of torpedoes, etc.

The transformation of merchant vessels into war ships.

The private property of belligerents at sea.

The length of time to be granted to merchant ships for their departure from ports of neutrals or of the enemy after the opening of hostilities.

The rights and duties of neutrals at sea, among others the questions of contraband, the rules applicable to belligerent vessels in neutral ports; destruction, in cases of vis major, of neutral merchant vessels captured as prizes.

In the said convention to be drafted there would be introduced the provisions relative to war on land that would be also applicable to maritime warfare.

4. Additions to be made to the convention of 1899 for the adaptation to maritime warfare of the principles of the Geneva Convention of 1864.

The United States, however, reserved the right to bring to discussion two matters of great importance not included in the programme, namely, the reduction or limitation of armaments and restrictions or limitations upon the use of force for the collection of ordinary public debts arising out of contracts.

It was finally decided that the conference should meet at The Hague on the 15th day of June, 1907, and thus the conference, proposed by the President of the United States, and convoked by Her Majesty the Queen of The Netherlands upon the invitation of the Emperor of All the Russias, assumed definite shape and form.

It will be recalled that the First Peace Conference, although international, was not universal, for only a fraction of the powers recognizing and applying international law in their mutual relations were invited to The Hague. The fact that the uninvited might adhere to the conventions was foreseen by the conference itself, and the conventions concerning the laws and customs of land warfare and the adaptation to maritime warfare of the principles of the Geneva Convention of the 22d of August, 1864, provided that nonsignatory powers by adhering became admitted to the privileges as well as bound by the liabilities of the various conventions. The convention for the peaceful adjustment of international difficulties (art. 60) suggested eventual adherence of such countries, but made this conditioned upon an understanding to be reached by the contracting powers.

In the circulars of October 21 and December 16, 1904, it was suggested as desirable to consider and adopt a procedure by which States nonsignatory to the original acts of The Hague Conference may become adhering parties. This suggestion was taken note of by the Russian Government and invitations were issued to forty-seven countries, in response to which the representatives of forty-four nations assembled at The Hague and took part in the conference. No opposition was made to the admission of the nonsignatory States to the benefits of the convention of 1899 for the peaceful adjustment of international difficulties, and on the 14th day of June, 1907, the signatories of the First Conference formally consented under their hands and seals to the adhesion of the nonsignatory States invited to the Second Conference.

The delegation of the United States to the conference was composed of the following members:

Commissioners plenipotentiary with the rank of ambassador extraordinary: Joseph H. Choate, of New York; Horace Porter, of New York; Uriah M. Rose, of Arkansas.

Commissioner plenipotentiary: David Jayne Hill, of New York, envoy extraordinary and minister plenipotentiary of the United States to the Netherlands.

Commissioners plenipotentiary with rank of minister plenipotentiary: Brig. Gen. George B. Davis, Judge-Advocate-General, U. S. Army; Rear-Admiral Charles S. Sperry, U. S. Navy; William I. Buchanan, of New York.

Technical delegate and expert in international law: James Brown Scott, of California.

Technical delegate and expert attaché to the commission: Charles Henry Butler, of New York.

Secretary to the commission: Chandler Hale, of Maine.

Assistant secretaries to the commission: A. Bailly-Blanchard, of Louisiana; William M. Malloy, of Illinois.

The Dutch Government set aside for the use of the conference the Binnenhof, the seat of the States-General, and on the 15th day of June, 1907, at 3 o’clock in the afternoon, the conference was opened by his excellency the dutch minister for foreign affairs in the presence of delegates representing forty-four nations. In the course of his remarks his excellency offered “a tribute, of gratitude to the eminent statesman who controls the destinies of the United States of America. President Roosevelt has greatly contributed to harvest the grain sown by the August Initiator of the solemn international conferences assembled to discuss and to render more exact the rules of international law which, as the States are the first to recognize, should control their relations.”

At the conclusion of the address of welcome his excellency suggested as president of the conference His Excellency M. Nelidow, first delegate of Russia, and, with the unanimous consent of the assembly, M. Nelidow accepted the presidency and delivered an address, partly personal, in which, in addition to thanking the conference for the honor of the presidency, he called attention to the work of the First Conference and outlined in a general way the underlying purpose of the Second Conference and the hopes of the delegates assembled. At the termination of his address he proposed the personnel of the secretary-general’s office.

At the next meeting of the conference, on the 19th day of June, the president proposed that the conference follow the procedure of the First Conference, adapting it, however, to the new conditions; for, as the conference was so large, it seemed advisable to draw up a series of rules and regulations to facilitate the conduct of business. The president thereupon proposed the following twelve articles, which were unanimously adopted, with the exception of the third paragraph of article 8, which was suppressed:

• Article 1. The Second Peace Conference is composed of all the plenipotentiaries and technical delegates of the powers which have signed or adhered to the conventions and acts signed at the First Peace Conference of 1899.
• Art. 2. After organizing its bureau, the conference shall appoint commissions to study the questions comprised within its programme.
• The plenipotentiaries of the powers are free to register on the lists of these commissions according to their own convenience and to appoint technical delegates to take part therein.
• Art. 3. The conference shall appoint the president and vice-presidents of each commission. The commissions shall appoint their secretaries and their reporter.
• Art. 4. Each commission shall have the power to divide itself into subcommissions, which shall organize their own bureau.
• Art. 5. An editing committee for the purpose of coordinating the acts adopted by the conference and preparing them in their final form shall also be appointed by the conference at the beginning of its labors.
• Art. 6. The members of the delegations are all authorized to take part in the deliberations at the plenary sessions of the conference as well as in the commissions of which they form part. The members of one and the same delegation may mutually replace one another.
• Art. 7. The members of the conference attending the meetings of the commissions of which they are not members shall not be entitled to take part in the deliberations without being specially authorized for this purpose by the presidents of the commissions.
• Art. 8. When a vote is taken each delegation shall have only one vote.
• The vote shall be taken by roll call, in the alphabetical order of the powers represented.
• [The delegation of one power may have itself represented by the delegation of another power.]
• Art. 9. Every proposed resolution or desire to be discussed by the conference must, as a general rule, be delivered in writing to the president, and be printed and distributed before being taken up for discussion.
• Art. 10. The public may be admitted to the plenary sessions of the conference. Tickets shall be distributed for this purpose by the secretary-general with the authorization of the president.
• The bureau may at any time decide that certain sessions shall not be public.
• Art. 11. The minutes of the plenary sessions of the conference and of the commissions shall give a succinct resume of the deliberations.
• A proof copy of them shall be opportunely delivered to the members of the conference and they shall not be read at the beginning of the sessions.
• Each delegate shall have a right to request the insertion in full of his official declarations according to the text delivered by him to the secretary, and to make observations regarding the minutes.
• The reports of the commissions and subcommissions shall be printed and distributed before being taken up for discussion.
• Art. 12. The French language is recognized as the official language of the deliberations and of the acts of the conference.
• The secretary-general shall, with the consent of the speaker himself, see that speeches delivered in any other language are summarized orally in French.

The president stated that the programme for the work of the conference was so elaborate that a division of the conference into four commissions would be advisable; that in so doing the precedent of 1899 would be followed, for the First Conference apportioned the subjects enumerated in the programme among three commissions. The following dispositions were thereupon proposed and agreed to:

first commission.

Arbitration.

International commissions of inquiry and questions connected therewith.

second commission.

Improvements in the system of the laws and customs of land warfare.

Opening of hostilities.

Declarations of 1899 relating thereto.

Rights and obligations of neutrals on land.

third commission.

Bombardment of ports, cities, and villages by a naval force. Laying of torpedoes, etc.

The rules to Which the vessels of belligerents in neutral ports would be subjected.

Additions to be made to the convention of 1899 in order to adapt to maritime warfare the principles of the Geneva Convention of 1864, revised in 1906.

fourth commission.

Transformation of merchant vessels into war vessels.

Private property at sea.

Delay allowed for the departure of enemy merchant vessels in enemy ports.

Contraband of war. Blockades.

Destruction of neutral prizes by force majeure.

Provisions regarding land warfare which would also be applicable to naval warfare.

The president thereupon proposed as presidents or chairmen of the various committees the following delegates:

• First commission: M. Léon Bourgeois.
• Second commission: M. Beernaert; assistant president, M. T. M. C. Asser.
• Third commission: Count Tornielli.
• Fourth commission: M. de Martens.

At the same time the president designated as honorary presidents of the third and second commissions Messrs. Joseph H. Choate and Horace Porter, and as a member of the correspondence committee Hon. Uriah M. Rose. The president recommended that the deliberations be kept secret, or, at least, that they be not communicated by members to the press. The recommendation was unanimously adopted, but was not universally adhered to by the delegates.

The first, second, and third commissions were subsequently divided into subcommissions in order to reduce the numbers and to facilitate the work, and at various times committees of examination were appointed by each of the commissions in order still further to reduce membership and to present in acceptable form projects accepted in principle but not in detail by the various commissions. Finally, in order to correct the language and to assign the various projects already approved to their proper place in the final act, a large editing committee (comité de rédaction) was appointed at a meeting of the conference and a subcommittee was appointed, consisting of eight members, to do the work of the large committee and report to it. It may be said that the American delegation was represented on almost all of these various committees and subcommittees.

The actual work of the conference was, therefore, done in commission and committee. The results, so far as the several commissions desired, were reported to the conference sitting in plenary session for approval, and, after approval, submitted to the small subediting committee for final revision, which, however, affected form, not substance. The results thus reached were included in the final act and signed by the plenipotentiaries on the 18th day of October, 1907, upon which date the conference adjourned.

The positive results of the conference might be set forth, with perhaps equal propriety, in either one of two ways: First, by discussing the work of each commission and the results accomplished by each, or, secondly, by enumerating and describing the results in the order in which they appear, arranged by the conference itself, in the final act. The first method would have the advantage of showing the work of each commission as a whole from the presentation of the various projects until they took final shape in the commission and were approved by the conference in plenary session. As, however, important projects were considered by the commission, but were not voted upon by the conference, or, if voted in a form so modified as to appear almost in the nature of original propositions, and inasmuch as the various conventions and measures adopted are arranged in the final act without specific reference to the commissions, it seems advisable to follow the order of the final act, so that each measure may occupy the place in the report which was assigned to it by the conference itself. This arrangement will bring into prominence the result rather than the means by which the result was reached, and will prevent in no slight measure repetition and duplication.

Following then the order of the final act, the various conventions, declarations, resolutions, and recommendations are prefaced by an apt paragraph setting forth the spirit which animated the conference:

In a series of reunions, held from June 15 to October 18, 1907, in which the delegates aforesaid have been constantly animated by the desire to realize in the largest measure possible the generous views of the August Initiator of the Conference and the intentions of their Governments, the conference adopted, to be submitted to the signatures of the plenipotentiaries, the text of the conventions and of the declaration hereinafter enumerated and annexed to the present act.

The final act then enumerates fourteen subjects, thirteen of which are conventions and one is a declaration. Of each of these in turn.

i.—convention for the peaceful adjustment of international differences.

This convention is, both in conception and execution, the work of the First Peace Conference, of 1899, but the eight years which have elapsed since its adoption suggested many improvements and modifications and not a few additions. The extent of the changes will be evident from the mere statement that while the convention of 1899 contained sixty-one articles, the revision of 1907 contains ninety-seven articles. But these figures throw no light upon the nature and importance of the changes. The structure of 1899, however, practically remains intact, the chief addition being the provision for summary procedure proposed by the French delegation and accepted by the conference. (Title IV, Chapter IV, arts. 86–90.) All important changes which tended either to enlarge the scope of the convention or to facilitate its application, thereby rendering it more useful, will be discussed in detail in the order of the convention.

Articles 2 to 8 of Title II of the revised convention deal with good offices and mediation, and in this title there is only one change of importance, namely, the insertion of the word “desirable” in article 3, so that the extension of good offices by powers strangers to the conflict is considered not merely useful, as in the convention of 1899, but desirable, as revised by the conference of 1907. The change is perhaps slight, but the powers might well consider a thing useful and yet consider it undesirable. It may well be that the word “desirable” is a step toward moral duty and that in time it may give rise to legal obligation. The same may be said of the insertion of the word “desirable” in article 9, making the recourse to the international commission of inquiry desirable as well as useful. Both additions were proposed by the American delegation and accepted unanimously by the conference. In this connection it may be advisable to note that a like change has been made upon the proposal of Austria-Hungary in the revision of article 16 of the original convention, so that the arbitration of judicial questions and questions of interpretation and application of international conventions is declared to be not only efficacious and equitable but desirable. (Art. 38.)

Title III in both the original and revised conventions deals with international commissions of inquiry; but while the convention of 1899 contained but six articles (9–14, inclusive), the revision contains twenty-eight. A little reflection shows the reason for the great care and consideration bestowed upon the commission of inquiry by the recent conference. In 1899 an institution was created which was hoped would be serviceable. In 1907 the creation was revised and amplified in the light of practical experience, for the institution, theoretically commendable, had justified its existence at a very critical moment, namely, by the peaceful settlement of the Dogger Bank incident (1904). The provisions of 1899 were meager and insufficient to meet the needs of a practical inquiry. In 1907 the procedure actually adopted by the commission of inquiry was presented to the conference, studied, considered, and made the basis of the present rules and regulations. The nature of the commission of inquiry is, however, unchanged. It was and is an international commission charged with the duty of ascertaining the facts in an international dispute, and its duty is performed when the facts in controversy are found. It does not render a judgment, nor does it apply to the facts found a principle of law, for it is not a court. (Art. 35.)

The seat of the commission is The Hague, but the parties may provide in the agreement of submission that the commission meet elsewhere (art. 11), or the commission may, after its formation and during its session at The Hague, transport itself, with the consent of the parties, to such place or places as may seem appropriate to ascertain the facts in controversy. The parties litigant not only bind themselves to furnish to the commission of inquiry, in the largest measure possible, the means and facilities necessary for the establishment of the facts, but the contracting powers agree to furnish information in accordance with their municipal legislation unless such information would injure their sovereignty or security.

As previously said, the First Conference created the commission of inquiry, but left it to the parties to the controversy to fix the procedure, specifying only that upon the inquiry both sides be heard. If the procedure were not established in advance by the litigating powers, it was then to be devised by the commission. (Art. 10.) The disadvantages of this provision are apparent. The parties, inflamed by passion or ill at ease, were, upon the spur of the moment, to devise an elaborate code of procedure, a task which might well be as difficult as to ascertain the facts in dispute. In the next place, if they did not do so, the commission was to fix the procedure. That this task might well be intrusted to the commission is proved by the fact that the commission of 1904 did in fact devise a satisfactory code. But the procedure thus framed could not be known to the litigating countries in advance, and the agents and counsel were thus deprived of the opportunity of familiarizing themselves with it before entering upon the case.

The revision of 1907, therefore, aims to obviate this difficulty by establishing a careful code of procedure based upon the experience of the commission of 1904. It is practical in its nature, for it is based upon actual practice. It provides in advance the procedure of the commission, thus relieving the parties from this serious task and leaving the commission free to begin its labors without the necessity of drawing up an elaborate system of rules and regulations for the conduct of business before it. The procedure, however, is not obligatory, for the parties may, if they choose, specify in the submission the procedure to be followed (art. 10), but the conference recommended a code of procedure which was to be applied if the parties did not adopt other rules (art. 17). The revision of the title devoted to international commissions of inquiry received the unanimous approval of the conference.

The selection of commissioners is, and must always be, a matter of delicacy and difficulty. Facts as seen by one person differ from those as seen by another, and national interest tends unconsciously to warp the judgment of one whose country is involved in the controversy. But the value of the findings of fact depends upon their accuracy. If possible, they should be found by a tribunal from which nationals are excluded. The world does not seem to be ready for this ideal solution, but the conference made a serious step toward it by associating strangers to the controversy with the commissioners. Article 12 of the revised convention for the peaceful adjustment of international differences provides that the commissioners of inquiry, in the absence of a special agreement to the contrary, shall be chosen in accordance with articles 45 and 57 of the revised convention. These articles read as follows:

Art. 45. When the contracting powers desire to have recourse to the permanent court for the settlement of a difference that has arisen between them, the arbitrators called upon to form the competent tribunal to decide this difference must be chosen from the general list of members of the Court.

Failing the agreement of the parties on the composition of the arbitration tribunal, the following course shall be pursued:

Each party appoints two arbitrators, of whom only one shall be its citizen or subject, or chosen from among those who have been designated by it as members of the permanent court. These arbitrators together choose an umpire.

If the votes are equal, the choice of the umpire is intrusted to a third power, selected by the parties by common accord.

If an agreement is not arrived at on this subject, each party selects a different power, and the choice of the umpire is made in concert by the powers thus selected.

If these two powers have been unable to agree within a period of two months, each of them presents two candidates taken from the list of the members of the permanent court, outside of the members designated by the parties and not being the citizens or subjects of either of them. It shall be determined by lot which of the candidates thus presented shall be the umpire.

Art. 57. The umpire is by right president of the tribunal.

When the tribunal does not include an umpire, it appoints its own president.

A consideration of article 45 discloses that at least one of the commissioners or arbitrators shall be a stranger to the controversy. Article 32 of the convention of 1899 left both commissioners or arbitrators to the free choice of the selecting power. In the next place, it will be noted that the revised convention endeavors to secure the composition of the commission or court by providing ample machinery for the selection of the umpire. In the convention of 1899, in case of an equality of votes, the selection of the umpire was confided to a third power designated by the common accord of the parties to the controversy. If, however, the parties failed to agree upon the third power in question, each litigant chose a neutral power, and those neutral powers selected the umpire. It might well happen, however that the agents would be as far from agreement as the principals. The revision therefore provided that in case of disagreement each litigant power should select two members from the list of the permanent court, who should neither be citizens nor owe their appointment to a designating power; that thereupon the umpire should be chosen by lot from the members of the court so designated.

It will therefore be seen that the commission or court will consist of a body of five, at least two of whose members must be strangers to the controversy. The umpire selected by their common accord may be indifferent. If the commissioners or arbitrators fail to agree and make use of the machinery provided, it follows that the umpire selected is a stranger to the controversy, and of the commission or court consisting of five competent persons a majority, that is to say, three, would be persons having no national interest or bias in the controversy. It would seem, therefore, that the revised convention offers a guaranty for the finding of the facts as impartially as can be the case when national representatives are members of a small commission or court. As these provisions apply to the selection of arbiters for the constitution of the court at The Hague, it is not necessary to refer to them again in detail.

Article 48 of the revision of the convention of 1899 reads as follows:

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.

Consequently, they declare that the fact of reminding the conflicting parties of the provisions of the present convention, and the advice given to them, in the highest interests of peace, to have recourse to the permanent court, can only be regarded as friendly actions.

To these two paragraphs was added the following provision:

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

The bureau shall immediately make the declaration known to the other power.

The American delegation of 1899 made the following reserve regarding this article, and the American delegation of 1907 repeated the reserve in the exact language of 1899:

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 entering upon, interfering with, or entangling itself in the political questions or internal administration of any foreign state, nor shall anything contained in the said convention be so construed as to require the relinquishment, by the United States of America, of its traditional attitude toward purely American questions.

The changes regarding the permanent court of arbitration, as in the case of the commission of inquiry, relate chiefly to procedure. In this, as in the previous case, the amendments were the result of experience gained in the actual trial of cases.

In the first place, article 52, a revision of article 31, provides that the agreement to arbitrate (the compromis) shall specify in detail the period for the appointment of the arbitrators, the form, order, and periods within which the various documents necessary to the arbitration shall be communicated (art. 63), the amount of money which each party shall deposit in advance to cover expenses. In addition, the agreement to arbitrate shall also, if there is occasion, determine the manner of appointment of the arbitrators, all special powers which the tribunal may have, its seat, the language which it will use and those whose use will be authorized before it, and, in general, all the conditions which the parties have agreed upon.

It is often difficult to formulate the question to be submitted to the court, and it may well be that the parties litigant, although willing to arbitrate, may not agree upon the form of submission. In order, therefore, to aid the parties, not to coerce them, the revised convention provides a method by which the permanent court is competent to draw up the agreement to arbitrate if the parties agree to leave it to this court. It may happen that one party is willing and the other is not. The convention therefore provided that in such a case the court might, upon the request of one of the parties, formulate the compromis. The exact language of the article follows:

After an agreement through diplomatic channels has been attempted in vain it is likewise competent, even if the request is made by only one of the parties in case—

(1) Of a difference comprised within a general arbitration treaty concluded or renewed after this convention goes into force, providing an agreement to arbitrate for each difference, and neither explicitly nor implicitly barring the competency of the court to draw up such agreement to arbitrate. However, recourse to the court shall not be had if the other party declares that the difference does not in its opinion belong to the category of differences to be submitted to compulsory arbitration—unless the arbitration treaty confers upon the arbitral tribunal the power to decide this preliminary question.

(2) Of a difference arising from contractual debts claimed by one power of another power as being due to its citizens or subjects, and for the solution of which the offer of arbitration has been accepted. This provision is not applicable if the acceptance has been made contingent on the condition that the agreement to arbitrate shall be drawn up in another manner.

If the other party consents, and the moral pressure will be great, the special agreement may be reached in this manner; but as the court is not permanently in session and would have to be constituted for the express purpose of formulating the agreement, it follows that the agreement must in reality be the result of the consent of both parties, because the court can only be constituted by the joint act and cooperation of both parties litigant. It is supposed, however, that the presence of such a possibility may lead disputants to reach a conclusion, even although they do not care to avail themselves of the machinery provided.

It should be noted that the second section of article 53 refers to the arbitration of differences arising from contractual debts. As the agreement to renounce the use of force depends upon arbitration, and as arbitration is impossible without the preliminary agreement of submission, it may happen that a failure to agree would destroy, in large measure, the value of the convention. It is hoped that the provisions of this article will enable the agreement to be formulated in extreme cases and thus exclude even the suggestion of force.

The other changes made in the procedure are important, but are not of a nature to cause discussion or comment, because they facilitate but do not otherwise modify the proceedings before the court.

Chapter IV of the revised convention deals with summary arbitration proceedings. Experience shows that it is difficult to constitute the permanent court, and that a trial before it is lengthy as well as costly. The conference, therefore, adopted the proposal of the French delegation to institute a court of summary procedure, consisting of three judges instead of five, with a provision that the umpire, in case of disagreement, be selected by lot from members of the permanent court strangers to the controversy. The proceedings are in writing, with the right of each litigant to require the appearance of witnesses and experts. It was hoped that a small court with a summary procedure might lead nations to submit cases of minor importance and thus facilitate recourse to arbitration and diminish its expense.

From this brief survey of the amendments to the convention for the peaceful adjustment of international differences it will be seen that they are not in themselves fundamental, that they do not modify the intent or purpose of the original convention, but that they render the institution of 1899 more efficient in the discharge of its duties. The American delegation, therefore, assisted in the work of revision and signed the convention.

ii.—convention concerning the limitation of the employment of force in the collection of contract debts.

This convention is composed of but two paragraphs, and in simplest terms provides for the substitution of arbitration for force in the collection of contractual debts claimed of the government of one country by the government of another country to be due to its nationals. The renunciation of the right to use force is explicit, but to receive the full benefit of this renunciation the debtor must in good faith accept arbitration. Should the parties be unable, or should it be difficult, to formulate the special agreement necessary for the submission of the case, resort may be had to the permanent court for the establishment of the special agreement (compromis) in accordance with article 53 of the convention for the peaceful adjustment of international differences.

Finally, the arbitration shall determine, in the absence of agreement between the parties, the justice and the amount of the debt, the time and the mode of payment thereof. It would seem, therefore, that this convention of but two articles will prevent a recourse to force in the future for the collection of contract debts. It should not be overlooked that the agreement to arbitrate is obligatory upon debtor as well as creditor and that the acceptance of the convention is a triumph for the cause of arbitration. It is true that the right to use force was only renounced conditioned upon an arbitration of the indebtedness, but it is not too much to say that the debtor nation may henceforth protect itself from the danger of force and that the application or nonapplication of force really depends upon the good faith of the debtor. This convention was introduced by the American delegation and adopted by the conference.

iii.—convention relative to the opening of hostilities.

The convention is very short and is based upon the principle that neither belligerent should be taken by surprise and that the neutral shall not be bound to the performance of neutral duties until it has received notification, even if only by telegram, of the outbreak of war. The means of notification is considered unimportant, for if the neutral knows, through whatever means or whatever channels, of the existence of war, it can not claim a formal notification from the belligerents before being taxed with neutral obligations. While the importance of the convention to prospective belligerents may be open to doubt, it is clear that it does safeguard in a very high degree the rights of neutrals and specifies authoritatively the exact moment when the duty of neutrality begins. It is for this reason that the American delegation supported the project and signed the convention.

iv.—convention concerning the laws and customs of war on land.

The conference of 1899 codified the laws of warfare on land within the compass of sixty articles, to which was prefaced an introduction of a formal nature consisting of five articles. The recent conference revised the convention of 1899, modified it in parts, and added various provisions in order to render the codification as complete and thorough, as accurate and scientific, as the changeable nature of the subject will permit. Following the arrangement of 1899, the revised convention contains several introductory articles, one of which will be discussed later. The various modifications and the additions of the revised convention will be briefly set forth in the order of the convention.

Article 2 is substantially the original text of 1899, with the additional requirement that the population of a nonoccupied territory shall be considered as belligerent “if it carries arms openly and respects the laws and customs of war.” States with large permanent armies are unwilling to accord belligerent rights to populations rising at the approach of an enemy. The smaller States, on the contrary, which do not maintain large standing armies, rely upon the patriotism of the mass of the people. This article is conceived in the interest of the small power with a small standing army, but requires that the population shall not only conform to the laws of war, but shall bear arms openly, so that their military character may be evident.

Article 5 is amended in the interest of the prisoners of war. In its original form the article permitted the internment of prisoners and their confinement “as an indispensable measure of security.” The right of confinement is restricted by the addition of the phrase “and only during the existence of the circumstances which necessitate that measure.”

Article 6 is slightly modified and improved by withdrawing from captor States the right to utilize the labor of “commissioned officers.” The final paragraph of the original article provided that prisoners should be paid for their work and labor according to the tariffs in force for soldiers of the national army. As it appeared that tariffs in this case were not universal, the following clause was added: “If there are no established rates, at rates appropriate to the work done.”

The bureau of information regarding prisoners of war was established by article 14 and, although excellent in conception, is defective in certain regards; for example, inadequate provision is made for keeping the records of individual prisoners of war and for the disposition of their records at the termination of the war. The revision supplies the omissions.

Article 17 in original form provided that officers who were prisoners of war should receive pay according to the tariff of their country. As, however, many nations, including the United States, allow no pay to such prisoners, the article was revised and modified to read as follows:

The Government will allow to officers who are prisoners in its hands the pay to which officers of the same grade are entitled in its own service, subject to the condition that it shall be reimbursed by their own Government.

To a nation which cultivates neutrality this provision can impose no serious burden.

Article 23 prohibits certain means of destruction and certain actions of belligerents. To the large category are added two additional paragraphs. It is forbidden to declare extinguished, suspended, or inadmissible in courts of justice the rights and choses in action of the citizens or subjects of the adverse party. The second addition demands more than a quotation, for the additional paragraph forbids a belligerent to force enemy citizens or subjects into taking part against their country, even although such citizens or subjects may have been in its service before the commencement of the war. While it can not be said that war is exclusively a relation between State and State, the modern tendency is to exclude peaceful noncombatants from its rigors. The inhibition of this paragraph frees the population of an invaded territory from being called upon and forced to serve and extends the inhibition to those who may have been in the service of the belligerent before the outbreak of the war. Attention may be called in this place to article 44, which further extends and safeguards the right of the inhabitants of occupied territory by forbidding the enemy to force the inhabitants to give information concerning the opposing army or its means of defense.

The original article 25 forbade belligerents to attack or bombard undefended towns, villages, dwelling places, or buildings. The framers of this article had in view the ordinary means of attack and bombardment. The increased employment of balloons or other like agencies in military operations suggested the insertion of the phrase “by any means whatsoever,” so that undefended towns, villages, dwellings, or buildings are not subject to land, aerial, or, as will be seen later, naval attack. (See Convention IX.) In article 27 historical monuments are included in the buildings exempt from bombardment.

A slight addition is made to article 52, providing that the payment of levies in kind, verified by receipts, “shall be arranged for as soon as possible.” A nearer approach is thus made to final payment.

Article 53 as amended brings within the scope of military operations “all means of communication and of transport employed on land or sea or in the air for the conveyance of persons, things, or messages,” but provides that they shall be restored and indemnities agreed upon at the establishment of peace. The last paragraph of the article provides that submarine cables connecting the occupied or hostile territory shall only be subject to destruction or seizure in case of absolute necessity. They are likewise to be restored and indemnities agreed upon.

Such are the changes suggested by the experience of the past eight years proposed to and adopted by the conference. Few in number, their importance is considerable, if for no other reason, that they make for completeness, supplying omissions and resolving doubts. An officer in the field can not well be expected to weight and balance with nicety the vexed problems of international law. A clear and concise code is what he needs and must have. This the convention supplies, and it must therefore be widely acceptable, although we may well cherish the hope that its dispositions may not be tested for years upon the battlefield or in campaign.

In one respect, however, the revised convention clearly surpasses its predecessor, for article 3 of the introduction supplies a sanction for the violation of its provisions. To quote literally:

The belligerent party who shall violate the requirements of these regulations shall be held to indemnity in a proper case. It will be responsible for all acts committed by persons forming a part of its armed forces.

Upon this article and the reasons prompting it the military delegate uses the following apt and convincing language:

It is one of the most essential rules of international good neighborhood that the states composing the family of nations shall be guided by the highest good faith in the execution of their treaty obligations. The rules of war of 1899 form no exception to this wholesome and necessary rule. It should be observed, however, that the several requirements of the undertaking are carried into effect—not under the immediate control and direction of the foreign offices of the signatory powers, but by military officers in the theater of hostile activity, each acting within the sphere of his command and duty in the military establishment of the belligerent under whose flag he serves. It is not surprising that differences of interpretation and of execution should have arisen in the application of the convention of 1899, or that undue severity should have been shown, from time to time, in the exercise of authority by subordinate commanders. To correct this dangerous tendency and give due emphasis to the well-established administrative principle that the state itself is responsible for the acts of its military commanders and subordinate agents, it was determined to add a concluding paragraph having some of the aspects of a penal clause. Its operation will be to require those charged by their governments with the exercise of high military command to maintain such a constant supervision over the acts of their subordinates as will be calculated to secure the exact and rigorous enforcement of the several requirements of the convention.

If the circumstances of a particular war are such as to suggest the application of a rule of limitation to cases arising under the article, such mutual stipulations in that regard as are warranted by the facts may properly find a place in the treaty of peace.

v. convention concerning the rights and duties of neutral powers and persons in land warfare.

This convention is divided into five chapters, dealing, respectively, with the rights and duties of neutral powers (arts. 1–10), prisoners and wounded in neutral territory (arts. 11–15), neutral persons (arts. 16–18), railroad material (art. 19), and, finally, dispositions of a formal nature.

The various provisions of the first chapter are largely declaratory of international law and of recognized usage, providing, generally, for the inviolability of neutral territory (art. 1) and that forcible repression of violations of neutral territory can not be considered a hostile act (art. 10); that belligerents may not use neutral territory for purposes of transit either of army or supplies (art. 2); that belligerents shall not install upon neutral territory wireless-telegraph apparatus (art. 3); that detachments shall not be recruited or enrolled in neutral territory (art. 4), but a neutral is not taxed with responsibility by the sole fact that individuals pass its frontiers singly to take service with the enemy (art. 6); that the neutral should not tolerate upon its territory any acts falling within articles 2—1, but is only constrained to punish these acts as contrary to neurality if actually committed upon its territory (art. 5); that a neutral is not bound to forbid or hinder the exportation or transit, for the account of either belligerent, of arms, munitions, or, in general, of anything which may be useful to an army or fleet (art, 7); nor is it obliged to interdict or restrain the use by belligerents of its cables, telephones, or telegraphic apparatus, whether owned by the state or private companies (art. 8); but the provisions of articles 7 and 8 shall be applied indiscriminately to either belligerent.

The provisions of the chapter dealing with the treatment in neutral countries of interned prisoners and wounded are humanitarian in all their parts and require no comment.

Chapter III, dealing with neutral persons, is but a fragment of the various articles submitted by the German delegation to safeguard the rights of neutral persons and property found upon enemy territory. Briefly, they may be summarized as follows: Citizens or subjects of a neutral state not taking part in the war are considered neutrals (art. 16), but lose their neutral character if they commit acts of hostility against or in favor of a belligerent, especially if they take service with one or the other enemy (art. 17). The neutral character, however, is not forfeited by the following acts:

a. Supplies furnished or loans voluntarily made to one of the belligerent parties, provided the furnisher or lender is not a resident of the territory of the other party or of territory in its military occupation and the supplies furnished are not furnished from either of these territories.

b. Services rendered in connection with police or civil administration.

Chapter IV consists of but a single article, providing, briefly, that railroad material belonging to neutral states, corporations, or private individuals shall only be requisitioned or used by a belligerent in case of imperious necessity; that it shall be returned to the country of origin as soon as possible; that a neutral may use like property belonging to a belligerent in case of necessity, and that an indemnity shall be paid for such use (art. 19). This last article is unlikely to have any great importance in a country so situated as the United States, but to a country surrounded by strong and powerful neighbors, as is Luxemburg, the proposer of the article, it may be of no little advantage.

The convention as a whole received the support of the American delegation and was signed by the plenipotentiaries.

vi.—convention regarding the enemy’s ships of commerce at the beginning of hostilities.

The uninterrupted practice of belligerent powers since the outbreak of the Crimean war has been to allow enemy merchant vessels in their ports at the outbreak of hostilities to depart on their return voyages. The same privilege has been accorded to enemy merchant vessels which sailed before the outbreak of hostilities, to enter and depart from a belligerent port without molestation on the homeward voyage. It was therefore the view of the American delegation that the privilege had acquired such international force as to place it in the category of obligations, Such, indeed, was the view of a majority of the conference, but as the delegation of Great Britain adhered to the opinion that such free entry and departure was a matter of grace, or favor, and not one of strict right, the articles regard it as a delay by way of favor and refer to the practice as desirable.

In support of the American view the case of the Buena Ventura is in point. This case was decided in 1899, and in his opinion Justice Peckham says:

It being plain that merchant vessels of the enemy carrying on innocent commercial enterprises at the time or just prior to the time when hostilities between the two countries broke out would, in accordance with the later practice of civilized nations, be the subject of liberal treatment by the Executive, it is necessary when his proclamation has been issued, which lays down rules for treatment of merchant vessels, to put upon the words used therein the most liberal and extensive interpretation of which they are capable; and where there are two or more interpretations which possibly might be put upon the language, the one that will be most favorable to the belligerent party, in whose favor the proclamation is issued, ought to be adopted.

This is the doctrine of the English courts, as exemplified in The Phoenix (Spink’s Prize Cases, 1, 5) and The Argo (Id., p. 52). It is the doctrine which this court believes to be proper and correct. The Buena Ventura (175 U. S., 388).

At the first reading, the convention seems to confer a privilege upon enemy ships at the outbreak of war. Free entry and departure are provided for, ships are not to be molested on their return voyages, and a general immunity from capture is granted to vessels from their last port of departure, whether hostile or neutral. But all these immunities are conditioned upon ignorance of the existence of hostilities on the part of the ship. This condition forms no part of the existing practice, and it was the opinion of the delegation that it substantially neutralized the apparent benefits of the treaty and puts merchant shipping in a much less favorable situation than is accorded to it by the international practice of the last fifty years.

An enemy merchant vessel approaching a hostile port which is notified by an armed cruiser, or which obtains the information under circumstances calculated to charge it with knowledge of the fact that hostilities exist, forfeits the immunities conferred by the treaty and becomes, eo instante, liable to capture. As the freight trade of the world is carried on in steamers which habitually carry only enough coal to reach their destination, the operation of the treaty is to render them instantly liable to capture, the alternative being to continue to the hostile destination and surrender.

The convention operates powerfully in favor of a State having a predominant naval force and possessed of numerous ports throughout the world, so situated that a merchant vessel carrying its flag may take refuge in such ports on being notified that hostilities exist. All other powers would be placed in a position of great disadvantage, and their merchant marine would suffer incalculable injury as the result of its adoption.

The effects upon the practice of marine insurance are also important. The ordinary contract does not cover a war risk. The operation of a war risk is simple because its conditions and incidents are fully known. But a policy calculated to cover the contingency of capture, the risk depending upon the chance or possibility of notification would introduce an element of uncertainty into marine risks which in view of the interests at stake, should not be encouraged.

The convention also presents an undesirable alternative in the treatment of enemy merchant ships, in that it provides that in certain cases they may be seized “subject to restoration after the war without indemnity” or to “immediate requisition with indemnity.” As merchant marine commerce is carried on it is obvious that the condition of the cargo which is detained in indifferent or inefficient custodianship during the ordinary duration of war would approach confiscation. It would also be substantially impossible to make such a risk the subject of a practicable contract of insurance.

The foregoing convention was not signed by the delegation, and its acceptance as a conventional obligation is not recommended.

vii. convention for regulating the transformation of vessels of commerce into vessels of war.

The delegation found no objection to the requirements of the foregoing convention in so far as its application to the transformation of purchased or chartered vessels into public armed vessels is concerned.

The preamble recites the fact that the powers have been unable to come to an agreement as to the transformation of a merchant vessel into a public armed vessel on the high seas in time of war. For that reason the convention is silent as to the place where such transformation shall take place, and the several articles of the convention are restricted in their operation to such other incidents of the transformation as relate to the authority to make it, the public record of the fact, the external marks of the transformed vessel, the character of the officers and crew, the discipline to be maintained, and the subjection of the vessel in its operations to the rules of maritime warfare.

It will be noted that the question of the place where the transformation of vessels of commerce into vessels of war is expressly excluded by the preamble to the convention because the conference was unable to harmonize the divergent views upon this matter. The American delegation, wishing to obviate controversies in the future, insisted that the transformation should take place either within the home port or territorial waters of the transforming country. Other delegations insisted that the transformation might take place not only within the home ports and territorial waters, but upon the high seas. As the difference of opinion was radical and irreconcilable, it was agreed to eliminate the question from the convention, but with such elimination the convention ceased to have any great value.

The delegation would, perhaps, have approved and signed the convention as it stands were it not for the fact that the conference considered its provisions as the corollary of the Declaration of Paris and as a guaranty against a more or less disguised return to the practice of privateering. The United States has not renounced the right to resort to privateering, although it has on various occasions expressed a willingness so to do if the inviolability of unoffending private property belonging to the enemy on the high seas be guaranteed. The American delegation made a declaration to that effect at the thirteenth session of the committee of examination and repeated it at the seventh plenary session of the conference on September 27, 1907, in the following language:

It is evident that the propositions incorporated in the report of the committee of examination have for their principal object the reiteration of the Declaration of Paris relative to the abolition of privateering. It is well known that the Government of the United States of America has not adhered to that declaration for the sole reason that it refuses to recognize the inviolability of private property on the high seas. The propositions submitted present questions solely for the consideration of the powers which are signatories of the Declaration of Paris, and consequently our delegation must, for the present, decline to participate in their discussion and abstain from voting. If, however, the conference, by its action, should establish the inviolability of private property on the seas, this delegation would be pleased to vote for the abolition of privateering.

The delegation was not unmindful of an internal and constitutional question in taking this action, for Congress is given by the Constitution the power “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” (Constitution, Art. I, sec. 8, cl. 10.) At various times Congress has exercised this right, by the acts of June 18, 1812, June 26, 1812, and January 27, 1813, the latter two in furtherance of or amendment to the original act of 1812. In view of the constitutional origin and nature of the right to grant letters of marque and reprisal, and in view of the fact that this right has been exercised by Congress, it seemed to the American delegation inadvisable to seek to bind the United States by conventional stipulations.

viii.—convention in regard to the placing of submarine mines.

The question of imposing restrictions upon the employment of submarine mines gave rise to extensive discussion and was made the subject of numerous propositions. Some of these were adopted and some were rejected by the conference. It is quite safe to say, however, that, due to the enormous loss of life and property as a result of the floating mines in the China Sea since the close of hostilities in the vicinity of Port Arthur, international public opinion now demands that anchored mines which may break loose from their moorings, shall, by the fact of going adrift, become harmless. There is a similar demand that nonanchored mines, if employed by belligerents in time of war, shall become inoffensive within a very short time, one or two hours at the longest, after they have passed out of the control of the party who planted them in the high seas or in the territorial waters of a belligerent. Beyond this, if there has been a formulation of public opinion, it is not unanimous and, possibly for that reason, has not found unequivocal expression.

The clauses which were inserted in deference to the demands of the insistent public opinion of the civilized world are embodied in the three numbered paragraphs of Article I. In Article II the placing of mines is prohibited along the coasts or before the ports of an adversary for the sole purpose of interrupting commercial navigation. In other words, a blockade may not be established and maintained by the sole use of submarine mines. Articles III, IV, and V are intended to provide for the safety of navigation of mine fields by commercial vessels and to insure the removal of mines at the close of the war. Article IV permits neutrals to use mines in the enforcement of their neutral rights and duties. Article VI contains the stipulation that powers whose existing systems of mine defense do not conform to the requirements of the convention shall bring about such conformity “as soon as possible.” In Article VII the life of the convention is restricted to seven years, or until the close of a Third Peace Conference if that date is earlier.

The convention as adopted by the conference in plenary session was generally acceptable to maritime powers and was approved by the delegation of the United States.

ix.—convention concerning the bombardment of undefended ports, cities, and villages by naval forces in time of war.

The question which the conference undertook to regulate by a convention might be considered academic were it not for the fact that the possibility of the bombardment of undefended ports, cities, and villages has been suggested and fear expressed that it be carried into practice. It is therefore advisable to prevent in express terms the occurrence of such bombardments; a precedent exists, and the convention brings the rules of land and naval warfare into exact harmony. For example, the rule adopted by the conference of 1899 is as follows: “The attack or bombardment of towns, villages, habitations, or dwellings which are not defended is prohibited.” (Convention Concerning Laws and Customs of Land Warfare of 1899, art. 25.)

In applying a remedy to the situation above outlined, the conference went somewhat beyond the strict necessities of the case. The prohibition in respect to bombardment is embodied in article 1 of the convention, the last clause of which contains the wholesome requirement that the mere fact that submarine mines are planted in front of a particular port or place shall not operate to take it out of the class of undefended towns.

In article 2, which is in the nature of an excepting clause, a naval force is authorized to be employed against “military works, military or naval establishments, depots of arms or material of war, shops and establishments suitable to be utilized for the needs of the enemy’s army or navy, and vessels of war then in port.” This requirement may be properly regarded as declatory of the existing rule, which authorizes the destruction of works or establishments in which material of war is manufactured. The mere presence of an armed vessel in the port operates to take the place out of the class of undefended towns.

Article 3 authorizes the employment of naval force to enforce compliance with a proper naval requisition—as for coal or provisions. If the right to impose requisitions be conceded—and none is better established in international law—it would inevitably follow that force may be used to collect them. To that extent, therefore, article 3 is declaratory. The requirement in respect to the amount and character of the requisition is not only new, but proper.

In article 4 it is expressly forbidden to bombard undefended towns for the nonpayment of contributions as distinguished from requisitions. This is a wise and salutary provision.

Chapter II is intended to regulate the naval bombardment of fortified places and defended towns and imposes upon the attacking force the same restrictions in respect to historical monuments, churches, artistic and scientific collections, hospitals and similar edifices, which are already recognized in land warfare. (Art. XXVII, Hague Convention, 1899.) It is also made the duty of the local authorities or inhabitants to designate the buildings which are entitled to immunity by a conventional sign, consisting of two large rectangles on which two triangles are superposed, the upper one being colored black and the lower white.

Article 6 charges the commander of the attacking forces with the duty, so far as the military necessities permit, of doing everything in his power to warn the local authorities of the intended bombardment. (Art. XXVI, Hague Convention, 1899.) In article 7 pillage is expressly forbidden. (Art. XXVIII, Ibid.)

From the humanitarian standpoint the convention is desirable, and it is difficult to see how naval operations can suffer by the observance of the conventional restrictions. The American delegation, therefore, approved and signed the convention.

x.—convention for the adaptation of the principles of the geneva convention to maritime war.

It is the purpose of this convention to replace the corresponding requirements of the maritime convention of July 29, 1899, in respect to the care and treatment of the sick and wounded in maritime warfare. The convention of 1899 was based upon the humane but inadequate, and to some extent obsolete, provisions of the Geneva convention of 1864. That convention has now been replaced by the new agreement, to which thirty States of the civilized world were signatory parties, entered into at Geneva, Switzerland, on July 6, 1906.

The Geneva convention of 1906 embodies the advances which have been made in the treatment of the sick and wounded in the forty-two years which had elapsed since the adoption of the original agreement in 1864. The new undertaking, which is restricted in its operation to warfare on land, represents the experience gained in recent military operations in the sanitation, transportation, and treatment of the sick and wounded. It is also in close touch with the great volunteer relief associations, of which the Red Cross Society of the United States is an example, whose function it is not alone to ameliorate the condition of the sick and wounded in time of war, but to act promptly in time of peace with a view to relieve hardship and suffering due to flood, fire, or famine, wherever and under whatsoever circumstances they may occur.

To that end, the convention, like the Geneva convention of 1906, provides a method of cooperation between the official and charitable agencies which is calculated to secure harmonious and efficient action in the theater of hostile military activities.

It was the purpose of the conference to introduce such amendments and ameliorations into the maritime convention of 1899 as were thought necessary to bring it into conformity with the humane requirements of the Geneva convention of 1906. In point of completeness and efficiency the new convention leaves nothing to be desired.

xi.—convention with regard to certain restrictions upon the right of capture in maritime war.

This convention marks an important step in advance, in that it confers an immunity from capture upon all postal correspondence, public or private, carried as mail on a neutral or enemy vessel. The parcels post is excepted or, to speak more correctly, is not expressly included in the conventional immunity. The carrying vessel is not exempt from seizure in a proper case, but in the event of capture the belligerent becomes charged with the duty of forwarding the mails to their destination “with the least possible delay.”

Violation of blockade is excluded from the beneficial operation of the convention in article 1, and the liability to search and capture are provided for, subject to reasonable restrictions, in article 2.

The exemption of fishing boats from capture in time of war has been accorded in a number of cases, notably in the leading case of The Paquete Habana ([1899] 175 U. S., 677), arising out of the Spanish war, but there have been exceptions, and the rule is by no means one of universal application. The operation of the treaty is to give to the better practice the sanction of conventional obligation and to include small nonseagoing vessels, exclusively engaged in the coast trade, within its beneficial operation. Article 2 confers a similar immunity upon the vessels engaged in scientific, religious, or philanthropic missions.

The concluding chapter regulates the treatment to be accorded to neutral and enemy subjects found on board a captured enemy merchant vessel. The language of the naval delegate states the aim and purpose of the stipulations in the following concise and apt terms:

A distinction is made between neutral and enemy subjects. The neutral citizens or subjects in the crew are released unconditionally without any engagement. The officers who are neutral citizens or subjects are released upon giving a written engagement not to serve on board an enemy ship during the war.

The enemy subjects or citizens are required to give a written engagement not to take part in any service having relation to the operations of the war during the continuance of hostilities.

The reserve contained in Article IV is intended to apply to the case of vessels engaged in unneutral service, such as the conveyance of fuel or supplies directly to the fleet and, in general, to merchant vessels cooperating with naval forces. The crews of such vessels under the present rules of international law are subject to retention as prisoners of war and no new hardship is imposed.

As the convention in all its parts is conceived in a highly humane spirit, the American delegation both approved and signed it.

xii.—convention regarding the establishment of an international prize court.

The details of this convention, as would be expected in an act organizing an international prize court, are complicated. The fundamental principle, however, is simple, namely, that the court of the captor should not pass ultimately upon the propriety or impropriety of a seizure made by the national authorities of which the judge is a subject or citizen; in other words, that one should not be judge in his own cause. It is stated by judges of the highest repute, the great Lord Stowell among the number, that a prize court is an international court, although sitting within the captor’s territory and established in pursuance of the rules and regulations issued by the captor; that the law administered in such a court is international law; and that the judgment of the court, in the absence of fraud, is universally binding. This may be the theory, although it seems much like a fiction, for the fact is that prize courts or courts exercising prize jurisdiction are constituted by the municipal authorities; that the judges are appointed, as other municipal judges, by the sovereign power of the State; that the law administered in the court whether it be largely international in its nature or not, is the municipal or the prize law of the appointing country, and that the judgment delivered has the essential qualities of a national judgment. Even if the court were strictly international, the judge is, nevertheless, a citizen or subject of the captor, and national prejudices, bias, or an indisposition to thwart the settled policy of his country must insensibly influence the judge in the formation of his opinion. The presumption is in favor of the validity of the capture; upon the neutral is imposed the hard and difficult task to overcome this presumption, and the frequency with which judgments of courts of prize, even of the highest and most respectable courts, have been protested through diplomatic channels and the questions submitted anew to the examination of mixed commissions and decided adversely to the captor, would seem to establish beyond reasonable doubt that, international in theory, they are national in fact and lack the impartiality of an international tribunal. Nor are instances lacking of the submission of questions to a mixed commission which have been passed upon by the Supreme Court of the United States sitting as a court of appeal in prize cases and in which the United States has by virtue of an adverse decision of a mixed commission reimbursed the claimants. Reference is made by way of example to the well-known case of The Circassian ([1864] 2 Wall., 135, 160), in which the British and American Mixed Commission made awards in favor of all the claimants. (4 Moore’s International Arbitrations, pp. 3911–3923.)

The purpose, then, of the convention is to substitute international for national judgment and to subject the decision of a national court to an international tribunal composed of judges trained in maritime law. It was not the intention of the framers of the convention to exclude a judge of the captor’s country whose presence on the bench would insure a careful consideration of the captor’s point of view, but to make the decision of the case depend upon, strangers to the controversy who, without special interest and national bias, would apply in the solution of the case international law and equity. The national judgment becomes international; the judgment of the captor yields to the judgment of the neutral, and it can not be doubted that neutral powers are more likely to guard the rights of neutrals than any bench composed exclusively of national judges.

It is not to be presumed, however, that the judgment of the captor will be biased or, if the judgment of the court of first instant be incorrect, that its judgment will not be reversed on appeal to the higher court. It can not be supposed that a judgment of a district court of the United States, if improper, would be affirmed by the Supreme Court of the United States; and it may safely be assumed that few litigants would care to carry a case from the Supreme Court of the United States to an international court, wherever and however established. Delay and expense would militate against it, the known impartiality and the reputation of the Supreme Court would counsel against it, and it would only be an extreme case and one of great importance that would induce private suitor or National Government to seek a reexamination of the case before an international court.

The American delegation was unwilling to allow an appeal directly from the district court to the international court, as in the original German project, holding that the captor’s court of appeal should be given the opportunity to correct or revise a judgment and that if a case be submitted to the international court that court would derive inestimable benefit from a careful consideration of the judgment of the Supreme Court. The project was amended so as to permit one national appeal, out of consideration to the objections of the United States and Great Britain, and when so amended was acceptable to both.

The provisions of article 46 are of importance in this connection. This article provides, briefly, that each party pays its own expenses; the defeated party the expenses of the procedure and in addition pays into the court 1 per cent of the value of the object in litigation to the general expenses of the court. Finally, if the suitor be not a sovereign State, but a private individual, a bond may be exacted by the court to guarantee the expenses above mentioned as a condition of taking jurisdiction. It needs no further argument to show that a case is not likely to be presented to the international court unless the amount or principle involved justifies the submission.

Admitting, however, the possibility of appeal, it is important, in the interest of international justice as well as in the interest of the individual suitor, that there be an end of litigation and that the principle of law applicable to the concrete case be established in a judicial proceeding. It is therefore provided that the appeal from the court of first instance to the national court of appeal shall have been perfected and the case decided within two years from the date of capture, which period was acceptable to Great Britain, a joint proposer with Germany, notwithstanding the fact that the appeal might be from a British vice-admiralty court situated in a remote quarter of the globe. An examination of all the appeals taken from the judgments of district courts in cases arising out of the late Spanish-American war shows that this period of time was adequate for the ultimate disposition of those cases before the Supreme Court of the United States. The period, therefore, was satisfactory to the American delegation. But it might happen that the case was not settled either in the court of first instance or in the international court of appeal within the conventional period of two years. In such a case it is provided that the case may be transferred from the national court and submitted to the international court of prize at The Hague. Should these provisions commend themselves generally, cases will be decided promptly by national courts, and the ultimate decision of the international court, if one there is to be, will be handed down before the suitor is broken in fortune and years.

The proposed court is to consist of fifteen judges, of whom nine shall constitute the quorum necessary for the transaction of business. (Art. 14.) They are to be chosen from among jurists of recognized competency in questions of international maritime law and should possess the highest moral consideration. They are to be nominated for a period of six years, and their appointment may be renewed. Of the fifteen judges, eight countries possess the right to nominate each a judge to serve for the full period of six years. In the alphabetical order of the French names these countries are Germany, the United States of American, Austria-Hungary, France, Great Britain, Italy. Japan, and Russia. The remaining seven judges are appointed for a like period of six years, but exercise their functions as judge within a shorter period, the length of active service depending largely upon the commercial and maritime importance of the various nations, their supposed interest in the questions likely to come before the court, and the frequency with which they may appear as suitors. The exact manner in which and the periods during which all the other judges shall be called to exercise their functions appear from the table annexed to the convention and made a part thereof. (Art. 15.) Any classification is bound to be more or less arbitrary, and its acceptance demands no little sacrifice on the part of the State which possesses less than the full representation. It was felt that the continuous presence in the court of judges representing the eight States mentioned would form a nucleus of trained judges and that the weight and authority of these judges based upon training and experience would counterbalance the disadvantage of the changes introduced in the court by the successive participation of representatives of different countries.

As the proposed court is to be international and is to be established primarily to settle peaceably and by judicial methods controversies arising between State and State involving the validity of capture, the sovereign States whose interests are involved in the controversy may appear before the prize court just as such sovereign States in other than prize matters may and do actually appear before an arbitration tribunal. It may thus be that sovereign States will ordinarily be parties plaintiff and defendant.

It may, however, happen that a State does not wish to espouse the cause of its citizen, although convinced that an injustice has been committed. In such a case it would seem to be eminently proper that the injured individual should himself appear before the court and litigate the question. The fourth article of the convention invests an individual claimant with such right; but, less the exercise of the right may prove embarrassing to the State, the same article makes this right depend upon the permission of the State whereof the claimant is a subject or citizen, and acknowledges the right of such State either to prevent his appearance or to appear on behalf of such subject or citizen. It is thus seen that whether the State is party litigant or not, it reserves fully the right to control the litigation.

The jurisdiction of the proposed court is dealt with in article 7, the translation of which is as follows:

If the question of law to be decided is provided for by a convention in force between the belligerent captor and the power which is itself a party to the controversy or whose citizen or subject is a party thereto, the international court shall conform to the stipulation of the said convention.

In the absence of such stipulations, the international court shall apply the rules of international law. If generally recognized rules do not exist, the court shall decide in accordance with general principles of justice and equity.

The foregoing provisions shall apply with regard to the order of admission of evidence as well as to the means which may be employed in adducing it.

If, in accordance with article 3, No. 2 c, the appeal is based on the violation of a legal provision enacted by the belligerent captor, the court shall apply this provision.

The court may leave out of account statutes of limitation barring procedure according to the laws of the belligerent captor, in case it considers that the consequences thereof would be contrary to justice and equity.

It can not be denied that the question of the jurisdiction of the court is not only of general interest, but of fundamental importance to the contracting parties. The first clause of the article calls attention to conventional stipulations which, if establishing rules of law, shall be binding upon the court in controversies between parties to the convention. It was hoped that the provisions of prize law likely to give rise to controversies would be codified by the conference and that, therefore, there would be a conventional law prescribed by the conference for the proposed court, A general agreement was not, however, reached.

The jurisdiction of the court, as set forth in article 7, was proposed by Great Britain, and accepted by the conference as interpreted by the learned and distinguished reporter, Mr. Louis Renault, from whose elaborate report the following weighty passages are quoted as the best contemporary interpretation of the article:

What rules of law will the new prize court apply?

This is a question of the greatest importance, the delicacy and gravity of which can not be overlooked. It has often claimed the attention of those who have thought of the establishment of an international jurisdiction on the subject we are considering.

If the laws of maritime warfare were codified, it would be easy to say that the international prize court, the same as the national courts, should apply international law. It would be a regular function of the international court to revise the decisions of the national courts which had wrongly applied or interpreted the international law. The international courts and the national courts would decide in accordance with the same rules, which it would be supposed ought merely to be interpreted more authoritatively and impartially by the former courts than by the latter. But this is far from being the case. On many points, and some of them very important ones, the laws on maritime warfare are still uncertain, and each nation formulates them according to its ideas and interests. In spite of the efforts made at the present conference to diminish these uncertainties, one can not help realizing that many will continue to exist. A serious difficulty at once arises here.

It goes without saying that where there are rules established by treaty, whether they are general or are at least common to the nations concerned in the capture (the captor nation and the nation to which the vessel or cargo seized belongs), the international court will have to conform to these rules. Even in the absence of a formal treaty, there may be a recognized customary rule which passes as a tacit expression of the will of the nations. But what will happen if the positive law, written or customary, is silent? There appears to be no doubt that the solution dictated by the strict principles of legal reasoning should prevail. Wherever the positive law has not expressed itself, each belligerent has a right to make his own regulations, and it can not be said that they are contrary to a law which does not exist. In this case, how could the decision of a national prize court be revised when it has merely applied in a regular manner the law of its country, which law is not contrary to any principle of international law? The conclusion would therefore be that in default of an international rule firmly established, the international court shall apply the law of the captor.

Of course it will be easy to offer the objection that in this manner there would be a very changeable law, often very arbitrary and even conflicting, certain belligerents abusing the latitude left them by the positive law. This would be a reason for hastening the codification of the latter in order to remove the deficiencies and the uncertainties which are complained of and which bring about the difficult situation which has just been pointed out.

However, after mature reflection, we believe that we ought to propose to you a solution, bold to be sure, but calculated considerably to improve the practice of international law. “If generally recognized rules do not exist, the court shall decide according to the general principles of justice and equity.” It is thus called upon to create the law and to take into account other principles than those to which the national prize court was required to conform, whose decision is assailed by the international court. We are confident that the judges chosen by the powers will be equal to the task which is thus imposed upon them, and that they will perform it with moderation and firmness. They will interpret the rules of practice in accordance with justice without overthrowing them. A fear of their just decisions may mean the exercise of more wisdom by the belligerents and the national judges, may lead them to make a more serious and conscientious investigation, and prevent the adoption of regulations and the rendering of decisions which are too arbitrary. The judges of the international court will not be obliged to render two decisions contrary to each other by applying successively to two neutral vessels seized under the same conditions different regulations established by the two belligerents. To sum up, the situation created for the new prize court will greatly resemble the condition which has long existed in the courts of countries where the laws, chiefly customary, were still rudimentary. These courts made the law at the same time that they applied it, and their decisions constituted precedents, which become an important source of the law. The most essential thing is to have judges who inspire perfect confidence. If, in order to have a complete set of international laws, we were to wait until we had judges to apply it, the event would be a prospective one which even the youngest of us could hardly expect to see. A scientific society, such as the Institute of International Law, was able, by devoting twelve years to the work, to prepare a set of international regulations on maritime prizes in which the organization and the procedure of the international court have only a very limited scope. The community of civilized nations is more difficult to set on foot than an association of jurisconsults; it must be subject to other considerations or even other prejudices, the reconcilement of which it not so easy as that of legal opinions. Let us therefore agree that a court composed of eminent judges shall be intrusted with the task of supplying the deficiencies of positive law until the codification of international law regularly undertaken by the governments shall simplify their task.

The ideas which have just been set forth will be applicable with regard to the order of admission of evidence as well as to the means which may be employed in gathering it. In most countries arbitrary rules exist regarding the order of admission of evidence. To use a technical expression, upon whom does the burden of proof rest? To be rational one would have to say that it is the captor’s place to prove the legality of the seizure that is made. This is especially true in case of a violation of neutrality charged against a neutral vessel. Such a violation should not be presumed. And still the captured party is frequently required to prove the nullity of the capture, and consequently its illegality, so that in case of doubt it is the captured party (the plaintiff) who loses the suit. This is not equitable and will not be imposed upon the international court.

What has just been said regarding the order of evidence also applies to the means of gathering it, regarding which more or less arbitrary rules exist. How can the nationality, ownership, and the domicile be proven? Is it only by means of the ship’s papers, or also by means of documents, produced elsewhere? We believe in allowing the court full power to decide.

Finally, in the same spirit of broad equity, the court is authorized not to take into account limitations of procedure prescribed by the laws of the belligerent captor, when it deems that the consequences thereof would be unreasonable. For instance, there may be provisions in the law which are too strict with regard to the period for making appeal or which enable a relinquishment of the claim to be too easily presumed, etc.

There is a case in which the international court necessarily applies simply the law of the captor, namely, the case in which the appeal is founded on the fact that the national court has violated a legal provision enacted by the belligerent captor. This is one of the cases in which a subject of the enemy is allowed to appeal. (Art. 3, No. 2c, at end.)

Article 7, which has thus been commented upon, is an obvious proof of the sentiment of justice which animates the authors of the draft, as well as of the confidence which they repose in the successful operation of the institution to be created.

The expediency of the establishment of the prize court must naturally be determined by those intrusted with such matters. The question of the constitutionality of the proposed international court of prize as a treaty court would seem to be precluded by the decision of the Supreme Court of the United States in Re Ross (140 U. S., 453). Indeed, it would seem that that may well be done generally which may be done singly or individually and that the submission of prize cases to an international court of appeal definitively constituted and in session is a wiser, safer, and more commendable practice than to submit questions of prize law to a mixed commission which may, as happened in the past, decide contrary to the Supreme Court of the United States.

In view, therefore, of the advantages of a permanent court to which an appeal may be taken, and in view of the guaranteed impartiality of an international decision, composed as the court would be in large majority by neutrals, and in view also of the determined policy of the United States to remain a neutral in all international conflicts, it would seem that we need scarcely fear the reversal of the decisions of our courts because such decisions presuppose a war to which we are a party. The existence of the court offers our citizens an international forum in which to safeguard their interests as neutral buyers and carriers in all parts of the world. The American delegation, therefore, not only approved and signed the convention, but proposed it jointly with Germany, Great Britain, and France.

xiii.—convention concerning the rights and duties of neutral powers in case of maritime war.

This convention deals with the important subject of maritime neutrality and formulates the progress which has been made in that subject in the past half century. It is stated in the preamble that the convention is incomplete; in view of the extent of the field to be covered and the sharply conflicting interests that are involved, a complete treatment of the subject was hardly to be expected. The convention therefore properly contains the suggestion that, in giving effect to its requirements, the rules of international law shall be regarded as supplementing the provisions of the convention. Neutrals are advised that any rules which they may apply, or any measures to which they may resort with a view to the enforcement of their neutral rights or the fulfillment of their neutral obligations, shall be uniformly applied to all belligerents, and shall not be changed during the progress of a particular war.

Out of an abundance of caution the enacting clause contains a provision that the requirements of the convention shall not be regarded as encroaching upon the requirements of existing treaties. In other words, an undertaking like the Black Sea treaty, containing provisions in regard to the passage of war ships through the Dardanelles, is not modified or abrogated by the requirements of the foregoing convention.

The proposition advanced by England represented the strict views of neutral rights and duties which are held by States maintaining powerful naval establishments, supplemented by a widely distributed system of coaling stations and ports of call, in which their merchant vessels could find convenient refuge at the outbreak of war and which enable them to carry on operations at sea quite independently of a resort to neutral ports for the procurement of coal or other supplies or for purposes of repair. As the policy of the United States Government has generally been one of strict neutrality, the delegation found itself in sympathy with this policy in many, if not most, of its essential details. France for many years past has taken a somewhat different view of its neutral obligations, and has practiced a liberal, rather than a strict, neutrality. The views of France in that regard have received some support from the Russian delegation and were favored to some extent by Germany and Austria.

It was constantly borne in mind by the delegation, in all deliberations in committee, that the United States is, and always has been, a permanently neutral power, and has always endeavored to secure the greatest enlargement of neutral privileges and immunities. Not only are its interests permanently neutral, but it is so fortunately situated, in respect to its military and naval establishments, as to be able to enforce respect for such neutral rights and obligations as flow from its essential rights of sovereignty and independence.

With a view, therefore, to secure to neutral States the greatest possible exemption from the burdens and hardships of war, the delegation of the United States gave constant support to the view that stipulations having for that purpose the definition of the rights and duties of neutrals should, as a rule, take the form of restrictions and prohibitions upon the belligerents, and should not, save in case of necessity, charge neutrals with the performance of specific duties. This rule was only departed from by the delegation in cases where weak neutral powers demanded, and need, the support of treaty stipulations in furtherance of their neutral duties. It was also borne in mind that a State resorting to certain acts with a view to prevent violations of its neutrality derives power to act from the fact of its sovereignty, rather than from the stipulations of an international convention.

The first two articles and the first paragraph of article 3 of the convention represent in substance the existing rule of international law on the subjects of which they treat. The second paragraph of article 3 shifts the obligation from the neutral to the captor, who is bound upon request of the neutral to return the prize captured improperly in neutral waters. The neutral, however, is not obligated to make the demand, and it may thus happen that a powerful captor violates neutral waters without protest from the neutral. It may well be that the spirit of the article imposes the duty upon the neutral; the latter does not. The article seems, therefore, to be objectionable.

Article 5 embodies the second of the rules adopted in the treaty of Washington for the guidance of the Geneva tribunal, to which is added a prohibition respecting the establishment of wireless-telegraph stations on neutral territory. Article 6 is new and forbids a neutral State, as such, to transfer vessels or munitions of war to a belligerent. Article 7 embodies the existing rule of international law which charges a State with no duty of forbidding the exportation from or transit of war material through its territory in time of war. Article 8 embodies the first of the rules of the treaty of Washington for the guidance of the Geneva tribunal.

Article 9 is a correct statement of the existing rule of impartiality in the dealings of neutral States with belligerents. The right to for bid access to its ports to a vessel which has failed or neglected to conform to the orders of the neutral State, or has violated its neutrality, is generally conceded.

Article 10 is new in conventional form, and authorizes the passage of an armed vessel or prize through territorial waters. In the absence of restrictive language this would seem to include straits which connect bodies of water which are open to public navigation. It also recognizes the fact that such mere passage through any territorial waters, provided no acts of hostility are committed, does not compromise the neutrality of the State to which they belong. The requirement of the enacting clause, that the provisions of existing treaties are not abrogated or modified by the convention, applies to this article. It may be noted, in passing, that the rule established in article 10 is substantially the same, in so far as free passage is concerned, as the rules prescribed by treaty in connection with the passage of the Suez and Panama canals by public armed vessels in time of war.

The stipulations in respect to the use of licensed pilots (art. 11), the twenty-four hours rule (articles 12 and 13), and the length of sojourn to repair damages stand in need of no comment.

Article 15 is new and is intended to prevent a neutral port from being made either a base of hostile operations or a place of assembly for the fleets of a belligerent. To that end a neutral may restrict, at discretion, the number of belligerent ships, including auxiliary vessels, that may enjoy its hospitality at any one time. In default of such rule, the number of ships of war or auxiliary vessels that may be in a particular neutral port at the same time is fixed at three.

Article 19 is an extremely important one. It provides that:

Art. 19. Belligerent vessels of war can not revictual in neutral ports and roads except to complete their normal supplies in time of peace.

Neither can these vessels take on board fuel except to reach the nearest port of their own country. They may, however, take on the fuel necessary to fill their bunkers, properly so called, when they are in the waters of neutral countries which have adopted this method of determining the amount of fuel to be furnished.

If, according to the rules of the neutral power, vessels can only receive coal twenty-four hours after their arrival, the lawful duration of their sojourn shall be prolonged twenty-four hours.

Art. 20. Belligerent vessels of war which have taken on board coal in the port of a neutral power, can not renew their supply within three months in a port of the same power.

The great powers of the world are susceptible of being grouped into two classes in the matter of neutral policy. England, having great naval power, supplemented by an extensive system of coaling-stations and commercial ports, has always favored and practiced a policy of strict neutrality. France, less powerful at sea, having few naval stations and with few distant colonial possessions, has been more liberal in the enforcement of its neutral obligations, and has allowed considerable aid to be extended to belligerent vessels in its ports. As England has treated both belligerents with impartial strictness, France has treated them with impartial liberality. With this view Russia and, to some extent, Germany and Austria are in sympathy. As has been seen, the policy of the United States has been in the main similar to that of Great Britain.

In the matter of coal the English delegation proposed that the amount of coal which a belligerent vessel might obtain in a neutral port should be restricted to quarter bunkers. The substantial operation of this rule would be that any public armed vessel that entered a neutral port short of coal would have to be interned until the close of the war, as it would be impossible, in a majority of cases, to reach a home port with so meagre an allowance of coal as quarter-bunker capacity. This proposition was rejected, as were a number of suggestions based upon bunker capacity, condition of bottoms, etc., which were so complicated as to be practically impossible in their application.

The result was to reach the compromise which is stated in article 19, as to which it may be said that the liberal States have yielded rather more than those whose policy is one of strict neutrality. The article represents, it would seem, the most satisfactory conclusion possible for the conference to reach.

Articles 21 to 25 relate to the admission of prizes to neutral ports. Articles 21 and 22 seem to be unobjectional. Article 23 authorizes the neutral to permit prizes to enter its ports and to remain there pending action on their cases by the proper prize courts. This is objectionable for the reason that it involves a neutral in participation in the war to the extent of giving asylum to a prize which the belligerent may not be able to conduct to a home port. This article represents the revival of an ancient abuse and should not be approved. In this connection it is proper to note that a proposition absolutely forbidding the destruction of a neutral prize, which was vigorously supported by England and the United States, failed of adoption. Had the proposition been adopted, there would have been some reason for authorizing such an asylum to be afforded in the case of neutral prizes.

Article 24 covers the case of the internment of a public armed vessel in a neutral port, and vests sufficient authority in the neutral to insure respect for its sovereign rights and obligations.

Article 25 is a restatement of the third of the rules of the treaty of Washington, and as such is worthy of adoption.

Article 26 was inserted in the interest of the weaker naval powers, and contains a stipulation that an exercise of its rights by a neutral State, involving possibly a resort to force, shall not be regarded as an unfriendly act by either belligerent.

Article 27 contemplates a mutual exchange of laws, ordinances, regulations, and other authoritative utterances of the respective Governments in respect to the conduct of belligerent vessels of war in their ports and waters. These are to be transmitted to the Dutch Government and by that Government to the other contracting parties.

This convention was made the subject of reservation at the plenary session of the conference and was not signed by the American delegation. This was done in order to enable the department to determine whether, all things considered, it was proper or expedient to subject the performance of its neutral rights and duties to some measures of conventional regulation.

By way of recapitulation: The second paragraph of article 3 and article 23 should not be approved. As to article 19, covering the question of coal supply, it can only be said that it represents a compromise of very divergent interests, and that practice under it in the future will be substantially the same as in the past.

The naval delegate of the United States expressed the following opinion:

The lack of conventional agreements regulating the exercise of neutrality has more than once threatened to involve the whole world in war and perhaps the rules adopted by this conference, if they are unanimously approved by the maritime powers, might be accepted as possibly promoting peace, since practically they certify the right of neutrals to do as they please within very wide limits without fear of reclamation, but there is no question that they are not in accord either with the practice of the United States or with its strategic situation.

A careful examination of the convention as a whole and in all its parts leads to the conclusion that its ratification is in the interest of neutral powers, but that in such ratification it is suggested that the second paragraph of article 3 and article 23 be rejected.

xiv.—declaration forbidding the launching of projectiles from balloons.

This declaration consists of but a single article, the essential portion of which follows:

The contracting parties agree to prohibit, for a period extending to the close of the Third Peace Conference, the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.

The declaration was a reenactment of the analogous provision of the First Conference, which, however, being for a period of five years, had elapsed. In order to prevent the lapse of the present declaration, it was provided that it should remain in effect until the end of the Third Conference.

declaration concerning obligatory arbitration.

The conference was unable to agree upon a general treaty of arbitration, although a large majority expressed itself in favor of a general treaty of arbitration, reserving therefrom questions concerning the independence, vital interests, and honor, and setting forth a list of concrete subjects in which the contracting powers were willing to renounce the honor clause. The principle of obligatory arbitration was unanimously admitted in the abstract, but when it was proposed to incorporate this principle in a concrete case or series of cases insurmountable difficulties arose. Some powers seemed willing to conclude arbitration treaties with certain other carefully selected powers, but were unwilling to bind themselves with the remaining nations of the world. Other nations were willing to renounce the honor clause in some subjects but not in others. It seemed to the friends of arbitration feasible to do generally in a single instrument what they had agreed to do in separate treaties with various countries. The majority felt that it was desirable to conclude at The Hague a general arbitration treaty binding those who were willing to be bound, without seeking, directly or indirectly, to coerce the minority, which was unwilling to bind itself. The minority, however, refused to permit the majority to conclude such a treaty, invoking the principle of unanimity or substantial unanimity for all conventions concluded at The Hague. In the interest of conciliation the majority yielded, although it did not share the point of view of the minority. The minority on its part recognized unequivocally and unreservedly the principle of obligatory arbitration, and the following declaration was unanimously accepted and proclaimed by the conference:

The conference, conforming to the spirit of good understanding and reciprocal concessions which is the very spirit of its deliberations, has drawn up the following declaration, which, while reserving to each one of the powers represented the benefit of its votes, permits them all to affirm the principles which they consider to have been unanimously accepted.

It is unanimous:

1. In accepting the principle for obligatory arbitration.

2. In declaring that certain differences, and notably those relating to the interpretation and application of international conventional stipulations, are susceptible of being submitted to obligatory arbitration without any restrictions.

The friends of arbitration were bitterly disappointed and the American delegation abstained from voting on the declaration; first, because it seemed to be an inadmissible retreat from the advanced position secured by an affirmative vote of four to one in favor of the arbitration convention, and, second, lest an affirmative vote be construed to indicate both an approval of the arguments or methods of the minority as well as of the withdrawal of the proposed treaty. It may be admitted that the establishment of the principle of obligatory arbitration is an advance. It is not, however, the great advance so earnestly desired; for a concrete treaty embodying the principle of obligatory arbitration would have been infinitely more valuable than the declaration of obligatory arbitration, however solemnly made.

resolution concerning the limitation of military charges.

It is familiar knowledge that the First Peace Conference was called primarily to “secure a possible reduction of the excessive armaments which weigh upon all nations,” and in the programme contained in the second Russian circular (January 11, 1899) one of the purposes was stated to be “to reach an understanding not to increase for a fixed period the present effective of the armed military and naval forces, and at the same time not to increase the budgets pertaining thereto, and a preliminary examination of the means by which a reduction might even be effected in the future in the forces and budgets above mentioned.” The First Conference failed to agree upon a limitation or a restriction, but adopted unanimously the following resolution:

The conference is of opinion that the restriction of militare charges, which are at present a heavy burden on the world, is extremely desirable for the increase of the material and moral welfare of mankind.

The Second Conference was equally unprepared to limit armaments, to place a restriction upon military or naval forces, or to bind the nations not to increase the budgets pertaining thereto. It will be remembered that the United States reserved the right to bring the question to discussion, although as such it did not figure on the programme. Pursuant to this reservation and instructions from the Secretary of State the American delegation insisted that the subject be discussed and in and out of conference lent it support. By general agreement a resolution was introduced, supported in an address by the first British delegate and in a letter written by the first American delegate on behalf of the delegation. The following resolution was thereupon unanimously adopted:

The Second Peace Conference confirms the resolution adopted by the conference of 1899 in regard to the limitation of military burdens; and in view of the fact that military burdens have considerably increased in nearly all countries since the said year, the conference declares that it is highly desirable to see Governments take up again the serious study of that subject.

the recommendations of the conference.

In addition to the conventions, declarations, and resolution, the conference emitted five desires or voeux, the first of which is in the nature of a resolution. Of each of these in turn—

The conference recommends to the signatory powers the adoption of the project hereunto annexed, of a convention for the establishment of a court of arbitral justice and its putting in effect as soon as an accord shall be reached upon the choice of the judges and the constitution of the court.

An analysis of this paragraph shows that the establishment of the court is not the expression of a mere wish or desire on the part of the conference, but that it is a recommendation to the powers to undertake the establishment of the court. In the next place, the project of convention annexed to the recommendation is not to be submitted as a plan or as a model, but for adoption as the organic act of the court. Again, the convention annexed and made a part of the recommendation goes forth not only with the approval of the conference, but as a solemn act adopted by it. And, finally, accepting the convention as the organic act, the conference recommends that the court be definitely and permanently established by the powers as soon as they shall have agreed upon a method of appointing the judges, who, when appointed, thus constitute the court. It will be noted that the number of powers necessary to establish the court is not stated, nor is the number of judges determined. It follows, therefore, that the powers wishing to establish the court are free to adopt the project of convention, agree upon the method of choosing the judges, and establish the court at The Hague for the trial of cases submitted by the contracting powers.

The establishment of the court of arbitral justice would not interfere with the court of arbitration instituted by the conference of 1899, and continued by the conference of 1907, for this latter is a temporary tribunal, erected for a particular purpose, to decide as arbiters a controversy submitted. The court of arbitral justice, on the contrary, is meant to be a permanent court, composed of judges acting under a sense of judicial responsibility, representing the various legal systems of the world, and capable of assuring the continuity of arbitral jurisprudence. (Art. 1.) The contracting powers are free to appoint either a large or a small number of judges; but it is provided in article 3 that the judges so appointed shall hold office for a period of twelve years and that they shall be chosen from among persons enjoying the highest moral consideration who meet the requirements for admission in their respective countries to the high magistracy, or who shall be jurists of recognized competency in matters of international law. (Art. 2.)

From these provisions it is evident that the proposed institution is to be not merely in name but in fact a court of justice; that it is to be permanent in the sense that it does not need to be constituted for any and every case submitted to it. It is obvious that such a court, acting under a sense of judicial responsibility, would decide, as a court, according to international law and equity, a question submitted to it, and that the idea of compromise hitherto so inseparable from arbitration, would be a stranger to this institution. The court is said to be permanent in the sense that it holds, as courts do, certain specified terms for the trial of cases. For example, article 14 says:

The court assembles in session once a year. The session begins on the third Wednesday of June and lasts until the calendar shall have been exhausted.

The court does not assemble in session if the meeting is deemed unnecessary by the delegation. If, however, a power is a party to a case actually pending before the court, the preliminary proceedings of which are completed or near completion, that power has the right to demand that the session take place.

The delegation may, in case of necessity, call an extraordinary session of the court.

It was deemed inexpedient to have an empty court at The Hague, and it was felt that without a judicial committee capable of transacting the ordinary business that might be submitted, permanency in the true sense of the word would be lacking, therefore it is provided by article 6 of the project that—

The court designates, every year, three judges who constitute a special delegation and three others who are to take their places in case of disability. They may be reelected. The vote is cast by blanket ballot. Those who obtain the larger number of votes are considered to be elected. The delegation elects its own president, who, failing a majority, is drawn by lot.

A member of the delegation is barred from the exercise of his functions when the power by which he was appointed, and under whose jurisdiction he is, is one of the parties to the case.

The members of the delegation bring to a conclusion the cases that may have been referred to therein, even though their term of office should have expired.

Taking the two articles together, it is apparent that the court as such is intended to be permanently in session at The Hague; that the judicial committee will attend to the smaller cases submitted, and that the full court will meet in ordinary or extraordinary session once a year or whenever the business before it would justify its assembling. The judges are intended to be permanent court officials and as such to receive stated salaries whether they are actively engaged at The Hague in the trial of cases or not. The compensation is small (6,000 florins), but the honor is great. If, however, a judge sits as a trial judge at The Hague, his expenses to and from The Hague are paid according to the rate allowed in the home country for the traveling expenses of a judge in service, and in addition the judge is to receive the further sum of 100 florins a day during his official service in the examination or trial of cases.

The first article speaks of a court free and easy of access. It is easy of access because it is permanent and has stated terms. It is free because no fees are paid for entrance, and it is likewise free in this sense: That the salaries of the judges are not paid by the litigating parties, but proportionately by the contracting powers. The jurisdiction of the court is very wide; for example, “the court of arbitral justice is competent to decide all cases which are submitted to it by virtue of a general stipulation of arbitration or by a special agreement” (art. 17); that is to say, if there be a general treaty of arbitration designating the court of arbitral justice, the court is competent, if the cause of action be presented, to assume jurisdiction and to decide the case. It may be that parties to a controversy may submit the finding of a commission of inquiry to the court in order to have the legal responsibility established in an appropriate case, or it may be that parties to an arbitration may wish to have the case examined when on appeal or de novo by the court of arbitral justice. In such a case, by virtue of the special agreement of the parties litigant, the court is invested with jurisdiction.

It was not thought advisable to clothe the judicial committee with the jurisdiction of the full court, lest there be two competing institutions. The judicial committee is, however, expected to be a serviceable body, and its jurisdiction is commensurate with its dignity. For example, article 18 provides:

The delegation (art. 6) is competent—

1. To hear arbitration cases coming under the foregoing article, if the parties agree upon demanding the application of summary procedure as determined in Title IV, Chapter IV, of the convention of July 29, 1899.

2. To institute an inquiry by virtue of and in conformity to Title III of the convention of July 29, 1899, in so far as the delegation may have been charged with this duty by the litigants acting in common accord. With the assent of the parties and in derogation of article 7, section 1, members of the delegation who took part in the inquiry may sit as judges if the dispute comes for arbitration before either the court or the delegation itself.

The judicial committee, therefore, is competent to sit as the court of summary proceeding in cases where parties litigant agree to make use of the summary proceeding of the revised convention. It is likewise competent to sit as a commission of inquiry; and as the commission of inquiry finds facts, there seems to be no reason why the members of the judicial committee may not sit as judges if the litigation is submitted to the full court or to the delegation.

Article 19 invests the judicial committee with the power to frame the special agreement—that is to say, the compromis provided for in article 52 of the convention for the peaceful adjustment of international differences, already mentioned—unless there be an agreement or stipulation to the contrary.

The procedure of the court has not been neglected, but finds an appropriate place in the project of convention.

The establishment of the permanent court was proposed by the American delegation, was accepted in principle and loyally supported by the delegations of Germany and Great Britain, and the project actually framed and recommended by the conference is the joint work of the American, German, and British delegations. It should be said, however, that the project could not have been adopted without the loyal and unstinted support of France.

From this brief exposition it is evident that the foundations of a permanent court have been broadly and firmly laid; that the organization, jurisdiction, and procedure have been drafted and recommended in the form of a code which the powers or any number of them may accept and, by agreeing upon the appointment of judges, call into being a court at once permanent and international. A little time, a little patience, and the great work is accomplished.

The nature and purpose of the second and third voeux of the conference can not well be expressed in more precise and apt terms than those used by the military delegate in his report of the proceedings of the second commission. The following paragraphs, therefore, are taken from such report:

It has been seen that both the committee and the conference finally rejected a proposition which had been prepared with a view to minimize the effects of war upon neutral commerce and in conformity with the tendencies of modern industry and trade, which demand for their development and maintenance the widest markets and which are in the highest degree sensitive to the disturbing effects of war.

The German proposition, by protecting stocks of goods in the hands of neutral agents in belligerant territory from seizure or requisition, was calculated to give to neutral undertakings the broadest immunity from belligerent interference by restricting the burdens and operations of war to the belligerent states and their subjects. But the proposition so conceived and submitted was dismissed with the following expression of desire, which may be accepted as showing the importance which is attached to the development of modern industry and commerce by a majority of the governments of the civilized world:

The conference expresses the hope—

I. That in case of war the competent authorities, civil and military, should make it their special duty to assure and protect the commercial and industrial relations between the belligerent powers and neutral states.

II. That the high (signatory) powers should seek to establish in agreements with each other uniform contractural undertakings determining, in respect to military burdens, the relations of each state in respect to the strangers established in its territory.

The fourth vœu of the conference is as follows:

4. The conference utters the wish that the elaboration of regulations relative to laws and customs of maritime warfare may figure in the programme of the next conference, and that in any case the powers apply, as far as possible, to maritime warfare the principles of the convention relative to the laws and customs of war on land.

Its adoption was due to the inability of the conference to codify the law of maritime warfare as the conference of 1899 had codified the laws and customs of war on land. The reasons for this failure need not be set forth, because the “desire” of the conference is that the regulation of the laws and customs of maritime warfare be included in the programme of the Third Conference. The concluding portion of the desire is in the nature of a recommendation, namely, that the powers apply as far as possible to naval warfare the principles of the laws and customs of warfare on land. It is likewise unnecessary to discuss this phrase, as it is not binding upon any power so to do, and the measure of the application naturally depends upon the judgment of each of the powers.

The final desire of the conference is in the nature of a recommendation and is as follows:

Lastly, the conference recommends to the powers the holding of a Third Peace Conference which might take place within a period similar to that which has elapsed since the preceding conference on a date to be set by joint agreement among the powers, and it draws their attention to the necessity of preparing the labors of that Third Conference sufficiently in advance to have its deliberations follow their course with the requisite authority and speed.

In order to achieve that object, the conference thinks it would be very desirable that a preparatory committee be charged by the Governments about two years before the probable date of the meeting with the duty of collecting the various propositions to be brought before the conference, to seek out the matters susceptible of an early international settlement, and to prepare a programme which the Governments should determine upon early enough to permit of its being thoroughly examined in each country. The committee should further be charged with the duty of proposing a mode of organization and procedure for the conference itself.

The desire of the friends of progress is to have The Hague Conference a permanent institution, which meets at certain regular periods, automatically if possible, and beyond the control of any one power. The American delegation was instructed to secure, if possible, this result, and through the efforts of the American delegation this result was reached in large measure. It is difficult, if not impossible, for one legislative body to bind its successor. It is doubly difficult for a quasi legislative or diplomatic assembly to bind a succeeding assembly. It was therefore thought advisable not to attempt to fix the date absolutely, but to recommend that a Third Conference meet within or at about the period which has elapsed between the calling of the First and the assembling of the Second Conference, leaving the exact date to be fixed by the powers.

Experience has shown that much time is lost not merely in organizing a conference, but in preparing and presenting the various projects. It is desirable that the projects be prepared in advance so that they may be presented, printed, and distributed at the opening of the session. This the conference recommended. But to prepare the various propositions to be submitted to the conference it is necessary to determine in advance, at least tentatively, the programme. The conference therefore recommended that some two years before the probable date of the conference a preparatory committee be charged by the various Governments to collect propositions, to ascertain the matters susceptible of international regulation, and to prepare the programme sufficiently in advance of the meeting that it may be seriously and maturely considered by each Government intending to take part.

The wisdom of these provisions is so apparent that any justification of them seems unnecessary. The last clause, however, can not be passed in silence, as its importance is fundamental; for, in simple terms, it means that the conference is not to be organized or the method of procedure determined by any single power. In other words, the conference, it would seem, is to be given over to itself. The committee of the powers is charged with the duty of proposing a mode of organization and procedure for the conference, and it can not be doubted that the committee, consisting of leading and representative powers, will propose a mode of organization and procedure which will permit the conference to organize itself and conduct its proceedings without requiring the guidance and direction of any particular power. Its officers may be elected by the conference, rather than appointed, and if so elected or selected by the conference it is safe to assume that they will be not only in harmony with its purposes, but in full sympathy with the spirit of the conference. In any case the recommendation is of the greatest importance, because it shows a unanimous desire on the part of the powers present for the calling of a Third Conference, and it indicates in no uncertain terms that the conference in becoming in the largest sense international is not to be under the control or predominance of any one nation.

Such is, in brief, the work of the Second International Peace Conference. It is believed that the various measures adopted by it and recommended to the favorable consideration of the powers will meet with general approval. It is hoped that the reasons set forth, briefly, in the present report may justify the delegates in signing the various measures and that their action as a whole may meet with the approval of the Secretary of State.

We have the honor to be, sir, your obedient servants,

Joseph H. Choate, Chairman.

Chandler Hale, Secretary.