Chapter V de Martens. national conflict, and experience has shown that on Speech of M. the morning after the award, journals, legislative chambers, public opinion-every one bows in silence to the decision of the arbitrators. If, on the contrary, it is known that the sentence is suspended for three months, the State against which judgment has been given will do its utmost to find a document or a new fact. During this time the judgment will be delivered over to the debate of public opinion. It will not finish or cut off anything. On the contrary, it will raise a tempest in the press and in the parliaments. Everything will be attacked - the arbitrators, the hostile government, and, above all, the home. government. They will be accused of having held back documents and concealed new facts. For three months the discussion upon the judgment will be open. Never can a judgment given on such conditions have the moral obligatory force which is the very essence of arbitration. On the other hand, the arbitrators will not have the same sentiment of responsibility as when by one word they are able to determine a controversy between two nations. This idea of a rehearing is the saddest blow which could be struck against the idea of arbitration. Apropos of my first remarks at the beginning of these sessions I apply to myself the words, dixi et salvavi animam meam.' I now change them and I say, 'dixi et salvavi arbitrationem.' Reply of Count Nigra remarked that the Committee was in Count Nigra. the presence of two opinions, both of which were too radical. There was a great deal of truth in the arguments of M. de Martens; but errors always hap- Chapter V pen, and if it is truly an error, evident to the eyes of the public, why should it be held necessary to consecrate it? Why not revise it? On the other hand, the wording of Article 55 seemed to him to be too unlimited. The expression "new facts exercising a decisive influence" did not seem to him sufficiently precise or definite to limit the cases of a rehearing. The instructions of the Italian Government directed him to pronounce himself in favor of a rehearing. If the principle of a rehearing is maintained, it seemed to him preferable to adopt the text of the treaty of arbitration between Italy and the Argentine Republic, which limits the reasons for a rehearing to facts regarding the case in litigation in the following two cases: First, if the judgment was pronounced on the basis of a forged or erroneous document; second, if the judgment, wholly or partly, is the consequence of a positive or negative error of fact resulting from the acts or documents in the case. Mr. Holls spoke as follows: Holls. "I cannot forbear to express, at the outset, the Reply of Mr. great reluctance and hesitation with which I find myself in disagreement, on a question of such great importance, with the gentleman who may perhaps be called the most eminent representative in the entire world, of the idea of arbitration, the President of the one tribunal of arbitration which is sitting at present, our most honorable colleague from Russia, M. de Martens. If there were in my mind the slightest doubt as to the soundness of the proposition which is Chapter V Holls. at present before us, I would be inclined to dismiss Reply of Mr. all further consideration and assent to the opinion of an authority so eminent, especially when that opinion is expressed with so much force and eloquence. But all of my hesitation does not prevent me from expressing my very great surprise at the arguments of which M. de Martens has just made use. In effect, they show to my mind that he has completely misunderstood the proposition which has been inserted at the request of the United States of America into the code of arbitral procedure. I agree most emphatically with all that M. de Martens has said about the necessity of putting a definite end to international litigation. In differences between States, the maxim'interesse populi ut sit finis litium' is even more true than in those between individuals. The supreme end of arbitration is, as M. de Martens said, to settle definitely the questions upon which recourse has been had, and everything which unreasonably retards the decision. or leaves it in suspense will be objected to, most decidedly, by the delegates of the United States as well as by him. "Moreover, Mr. President, our proposition for a rehearing is by no means based upon a fantastic idea, as though it were possible to evade or correct all the errors which must occasionally slip into arbitral decisions. We by no means ignore the fact that error is and always will be an inherent element in every human institution or decision. "Our point of view is eminently practical, and this is the theory upon which the Article proposed by Chapter V us reposes. It is above all extremely desirable and even necessary that the project of arbitration which this Conference is about to propose to the world should provide for the possibility of rectifying evident errors, in a regular and legal manner, without incurring the danger of having the decision repudiated by the aggrieved party. "Permit me to say at this point that the importance of our Article does by no means solely repose upon its practical effect in each case, but perhaps even more in the circumstance that it will constitute an important feature of the general project of arbitration which is being elaborated by the Conference. Everything which we are creating here has a general, voluntary, and facultative character. We are not occupied at the present time with rules for any particular difference whatever. It will soon be the duty of the members of this Conference to appear before their different peoples and explain to them the projects which we have elaborated with so much labor and so much care. According to the view of the American Delegation, this project will contain a fatal omission if it does not provide any method whatever for dealing with an evident error. For we may be sure that if this Article shall not be adopted, and a manifest error shall hereafter be discovered, the aggrieved party which loses its case will not accept the decision with good grace, even if it may yield to force. There is a limit to the principle established by M. de Martens, that the chief end of arbitration Holls. Chapter V is to settle forever the questions about which it has Reply of Mr. been invoked. That limit has well been declared by our American statesman, Abraham Lincoln, in his celebrated saying, 'Nothing is settled until it is settled right.' Our Article seems to find a golden mean between two extreme dangers, that of perpetuating an injustice, and that of leaving a difference unsettled. The objection has been raised that the new fact might be discovered one day after the expiration of the term fixed in this Article. But this possibility is an inconvenience which exists always when an arbitrary term is fixed for any end whatever, and it will exist in equal measure if we adopt a period of six months in place of three. The theory upon which our Article is based, so far as this point is concerned, is that immediately after the rendering of the decision it is subjected to criticisms and investigations of the most minute character, and then, if ever, is the opportunity for discovering new facts or important errors. "It may well be, as M. de Martens has said, that the criticism to which the arbitral decision will be subjected in this manner will take the character of an attack, and may cause discussion in the journals and pamphlets in a form most undesirable. But, on the other hand, it is also true that the decision will be examined most minutely by all the experts of international law in the entire world, and by all of those who, on account of their public or private position, have followed the proceedings of the litigation and who are interested in it and in its result. This |