XIII. ARBITRATION

A. GOOD OFFICES AND MEDIATION

a. THE CONFERENCE OF 1899

The last topic on the Russian programme was stated to be "the acceptance, in principle, of the use of good offices, mediation, and voluntary arbitration, in cases adapted to such means, with the object of preventing armed conflicts between nations; an agreement as to the mode of applying these means; and the adoption of a uniform practice of them." It was assigned to the III (and last) Commission; and, like many last things, it speedily became first in the minds of both conference and public.

The discussion of good offices and mediation was based on a series of articles proposed by the Russian delegation. Chevalier Descamps, of Belgium, who, in his capacity of rapporteur of the commission, presented a very able report on the whole subject of arbitration, stated the distinction between "good offices" and "mediation" to be that the former are considered more friendly and less definite than the latter, and are often followed by a "mediation" in which the third power, having extended its good offices, is called upon to act as mediator between the combatants. Both were justified on the ground that all civilized nations are members of one great international society, and that a war between any two members of this society may cause irretrievable injury to one or all of the others.

Before this argument, — and with the thought, doubtless, of others not expressed, there was no opposition

to the adoption of the agreement that in case of serious dispute or conflict, before an appeal is made to arms, the powers would have recourse, as far as circumstances permit, to the good offices or mediation of one or more friendly powers.

It will be noted that this agreement is qualified by the / two clauses "in case of serious dispute or conflict" and "as far as circumstances permit." M. Asser, of the Netherlands, moved to strike out the latter clause, on the ground that although it was adopted in 1856 by the Treaty of Paris, it had been discarded in 1885 by the Act of Berlin; hence, to retain it in 1899 would be a step backward. Count Nigra, of Italy, supported this motion, on the ground that the clause in question would destroy, to a large extent, the utility of the agreement. The motion was adopted, in committee, and the qualifying clause was omitted. The commission restored it again, on the motion of Sir Julian Pauncefote, of Great Britain, who had voted at first for its omission, but who now moved to restore it for the reason that, the rule being a new one, its application would be facilitated by the qualifying clause. M. Bourgeois, of France, also advocated the retention of the clause, for the reason that the new rule was to be of very wide, almost universal, application, whereas the Act of Berlin of 1885 had applied only to disputes localized in Africa; and that to attempt more, at first, than the powers could carry out would be a source of weakness both to the agreement and to the powers who made it.

No attempt was made, naturally, to define the circumstances which would, or would not, "permit." Nor was

it stated what is meant by a "serious dispute or conflict"; 2 but the rapporteur interpreted this, without contradiction, to mean any grave dispute which puts in danger the maintenance of peaceful relations; in other than such disputes, he said, good offices or mediation might constitute unjustifiable and dangerous meddling.

The agreement noted above was that the powers would have recourse to the good offices or mediation of one or 3 more friendly powers; and this was intended to mean that the parties to the dispute would themselves request. the services of another. But the further statement was made that "independently of this recourse, the signatory> powers consider it useful that one or more powers, stran나 gers to the dispute, should, on their own initiative, and as far as circumstances permit, offer their good offices or their mediation to the states at variance with each other." This right to offer good offices or mediation was based upon the independence and, in the eyes of international law, the equality of states; it was also admitted to be, in many cases, identical with the duty of a state to defend its rights and interests as a member of the "peaceful society of nations." On the motion of Count Nigra, this right was stated to belong to "powers strangers to the conflict, even during the course of hostilities."

The conference ignored the distinction sometimes made between good offices and mediation, from the point of view of friendly feelings, and regarded them both as being offered in a wholly conciliatory spirit. In order to make this entirely plain, and to give additional encouragement to the extension of good offices or mediation, the agreement further provides that "the exercise of this right shall never be considered by either of the parties to the dispute

as an unfriendly act." The word "never" was not commented upon; but the place of this proviso makes it apply, not only to such offers made before the war begins, but also to those made "even during the course of hostilities," when one of the combatants may be supposed to be gaining an advantage.

Professor Veljkovitch, of Servia, proposed to add to this last rule the statement that the refusal of an offer of good offices or mediation shall never be considered an unfriendly act. But this proposition was opposed for the reason that it was not desirable to insert what might seem like an invitation to refuse mediation in a convention whose object it is to encourage all possible means of preserving the peace. It was stated in the discussion, however, that such a refusal can not be considered an unfriendly act, inasmuch as the right to offer mediation implies a corresponding right to refuse it. On condition that this statement should be embodied in the minutes, Professor Veljkovich withdrew his proposition.

But, in order to prevent any unfair advantage being taken of, or derived from, the offer of mediation, the conference adopted the rule that the acceptance of mediation can not result, unless there be an agreement to the contrary, in interrupting, delaying, or hindering mobilization or other measures preparatory to war; and if its acceptance occurs after the commencement of war, it shall not, unless there be an agreement to the contrary, cause any interruption in the hostilities commenced. This rule was not proposed by the Russian delegation, but was adopted on motion of Count Nigra, who said that it might be regarded as superfluous, since mediation almost always occurs after a special agreement has been made in

cluding all such details; or that the rule might even be inverted, and provide that "hostilities shall be delayed or suspended as a result of mediation, unless there be an agreement to the contrary." But, he continued, since there are some large powers-ready for instant warfare which would not adopt the principle of mediation without the proviso contained in the rule, the proviso should be included in the interests of the utmost possible extension of mediation.

The rôle of the mediator is confined to the reconciliation of opposing claims and the appeasement of resentments which may have arisen between the states in dispute. The statement of this rôle would seem to be sufficiently broad to include a very large variety of acts on the part of the mediator; but, to prevent the act of mediation from being continued indefinitely, it was ruled that the functions of a mediator shall cease from the moment when it is declared, either by one of the parties to the dispute, or by the mediating power itself, that the means of reconciliation proposed are not accepted.

The dread of "intervention" on the part of the large. powers or the "concert of Europe" made itself evident, at numerous times during the deliberations of the conference, in the words of the representatives of the smaller powers. To remove this fear, so far as good offices and mediation were concerned, it was provided that these, whether at the request of the parties to the dispute or upon the initiative of powers which are strangers to the dispute, have exclusively the character of advice, and never have binding force. When this rule was adopted, it was stated expressly that good offices and mediation partake not at all of the character of arbitration, of authoritative