This last part contains the three chapters on the system of arbitration, on the Permanent Court of Arbitration, and on arbitration procedure.

The Convention contains, finally, several general provisions concerning ratifications, adhesions, and denunciations.

In the examination of the numerous questions which have come to its attention, the committee followed the general order clearly indicated at the beginning of our labors by Mr. LÉON BOURGEOIS, president of the Third Commission.

Good offices and mediation naturally formed the first chapter for our deliberations. The committee studied them, taking as the starting-point of its work the remarkable draft communicated to the Conference by the Russian delegation, bearing this title: "Outlines for the preparation of a draft convention to be concluded between the Powers taking part in the Hague Conference." Several new provisions have been added to this preliminary draft, and the arrangement of the articles has had to be modified.

CONCERNING THE PACIFIC SETTLEMENT OF
INTERNATIONAL DISPUTES

PREAMBLE

The preamble of the Convention for the pacific settlement of international disputes has been accepted as formulated by the author of this report [76] at the request of the General Drafting Committee,1 except for the substitution in the fifth paragraph of the expression "tribunal of arbitration accessible to all" instead of the words "free tribunal."

Here is the preamble:

Animated by a strong desire to work for the maintenance of general peace;

Resolved to promote by their best efforts the friendly settlement of international

disputes;

Recognizing the solidarity uniting the members of the society of civilized nations; Desirous of extending the empire of law, and of strengthening the appreciation of international justice;

Convinced that the permanent institution of a tribunal of arbitration, accessible to all, in the midst of the independent Powers, will contribute effectively to this result;

Having regard to the advantages attending the general and regular organization of the procedure of arbitration;

Sharing the opinion of the august initiator of the International Peace Conference that it is expedient to record in an international agreement the principles of equity and right on which are based the security of States and the welfare of peoples;

The General Drafting Committee was composed of Messrs. ASSER, president, Cheva lier DESCAMPS, Martens, MÉREY VON KAPOS-MÉRE, his Excellency Count NIGRA, SETH LOW Baron VON STENGEL, and RAFFALOVICH, secretary. Jonkheer RoCHUSSEN fulfilled the duties of assistant secretary.

Being desirous of concluding a Convention to this effect, have appointed as their plenipotentiaries, etc.

PART I.-The maintenance of general peace

ARTICLE 1

With a view to obviating, as far as possible, recourse to force in the relations between States, the signatory Powers agree to use their best efforts to ensure the pacific settlement of international differences.

This article is general in scope. It tends to ensure peace. The Powers therein affirm their common desire to prevent, as far as possible, recourse to force in international relations, and they agree to employ every effort to ensure the peaceful settlement of international differences. A spirit of reciprocal good feeling and friendly understanding cannot fail to inspire the Powers in the accomplishment of this work. Furthermore, it is left to them to decide how much cooperation they consider themselves able to render in bringing about the desired result without implying from such cooperation a special agreement by one Power with another.

The committee, upon a remark made by Count DE MACEDO, decided that reasons existed for giving the greatest scope to the provisions of Article 1. The substitution of the words "international differences" for the more special provision "conflicts which may arise between the signatory Powers" is in accord with that intention.

PART II.-Good offices and mediation

ARTICLE 2

In case of serious disagreement or dispute, before an appeal to arms, the signatory Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers.

The use of good offices and mediation finds its general justification in the ties which bind the members of an international society composed of civilized States one with the other, in the extreme nature of armed warfare as a means of solving international difficulties, in the general interest which exists in the maintenance. of peace. The far-reaching differences which may produce modern wars in the relations among all States make still more necessary, in our day, the use of good offices and mediation, whether it be to prevent, or to mitigate, armed conflicts.

Good offices can be distinguished in certain respects from mediation. Practically, these methods are distinguished less by their nature than by their greater or less concern with the sphere of friendly relations. Often, too, one follows the other, and the third Power which has established negotiations between disputing States is also named to take part in these negotiations and sometimes to conduct them. Diplomatic documents do not insist upon this distinction. The present Convention provides for friendly intervention in its twofold form. [77] From the very fact that good offices and mediation assume the character of tactful intervention and are within the sphere of friendly conciliation, they offer the double advantage of leaving the independence of the States to which they are addressed absolutely intact, and lending themselves not only to the settlement of legal disputes, but also to the accommodation of conflicting interests. In

these two ways they can place at the service of international peace the most varied resources for settlements.

The conclusion must not be drawn from that, that their application is endorsed without restriction. The natural sphere of good offices and mediation is that of serious differences which endanger the maintenance of peaceful relations. Beyond that, their use might constitute unreasonable interference, not without danger.

Article 2 describes in the following manner the international differences wherein the Powers bind themselves to resort to good offices and mediation: "in case of serious disagreement or dispute . . . before an appeal to arms."

International practice notes numerous cases where the tactful intervention of a third Power has produced happy results. The use of good offices or mediation was the subject of special agreements in Article 8 of the Treaty of Paris, March 30, 1856, and in Articles 11 and 12 of the General Act of the Conference of Berlin, February 26, 1885. Recourse to this method of adjusting international difficulties formed the subject of a vau of general scope in the 23rd protocol of the Congress of Paris in 1856. International conventions form a firm and substantial basis for the most important progress. The principle of prior mediation, written into some international agreements as a vau or as a special obligation, may be all the more legitimately followed to-day when it appears as an application by the Powers to themselves of the Convention which unites them as to the methods to be used to ensure the peaceful settlement of international disputes.

Should the agreement in the contract between the Powers be qualified? Will not reservations be of such a nature as to weaken an obligation which has no sanction behind it? In the committee Mr. ASSER, delegate from the Netherlands, particularly brought out this point.

But it has been observed-and by President LÉON BOURGEOIS among the first -that we were dealing with a provision the varying applications of which could with difficulty be measured in advance. It may be wise not to expose the execution of such a provision to resistance of such a character as to shake the authority of the entire Convention.

Among the qualifications which it was deemed were practically necessary, several formulas were offered, one after the other. Two of them emphasized especially the exceptional nature of the cases in which such recourse might be declined. "Unless the exceptional circumstances render this method manifestly impossible of application," said one. "Unless the exceptional circumstances are not in conflict therewith," was another. The Russian draft, reproducing the reservation accepted in 1856, provided: "So far as circumstances admit." The text finally adopted, at the suggestion of his Excellency Sir JULIAN PAUNCEFOTE, reads: "So far as circumstances allow." This qualification has been accepted as being in accord with practical necessities, without, however, being considered contrary to the ideas which inspired the former phraseology.

ARTICLE 3

Independently of this recourse, the signatory Powers deem it expedient that one or more Powers, strangers to the dispute, should, on their own initiative, and as far as circumstances may allow, offer their good offices or mediation to the States at variance.

Powers strangers to the dispute have the right to offer good offices or mediation, even during the course of hostilities.

The exercise of this right can never be regarded by either of the parties in dispute as an unfriendly act.

This article deals with a leading point: the offer of good offices and mediation. This offer may, in certain cases, be considered as the fulfilment of a service due to humanity, or of a duty belonging, under certain conditions, to the society of civilized States. It is to be noted that the remarkable provisions of Article 27 are inspired by this last consideration.

As to the power to offer good offices, it is a right founded upon the freedom of States, and, in many cases, blends with their right to guard their own interests and their property as members of the peaceful society of nations. In order to find a check upon this right we should not contest its existence, but consider the corresponding right to refuse offers which may be made.

This power should be safeguarded at any event. Mr. VELJKOVITCH, in [78] order the better to establish this point, proposed to place the offer of good offices and the "refusal to accept" on an equal footing in the Convention, expressly declaring at the same time that the latter may never be considered an unfriendly act. While recognizing the justice of this view, the Commission considered that there was no reason to emphasize such a contingency to this extent.

If we consider the difficulties which may present themselves to disputing States when endeavoring to agree to resort to some mediator, we shall appreciate the importance of a spontaneous offer of friendly intervention as a means of preventing armed conflicts.

Unhappily, this offer itself is often so surrounded by obstacles, that the States most sincerely moved by a desire to unite in the preservation of peace are led to take refuge in complete inaction. Under these conditions, it is very important to establish beforehand, in the name of all and without idle verbiage, the fact that courageous and honorable attempts to prevent armed struggles between States are useful. Good intentions will be less restricted, fears will be in some measure allayed, and the general interests of peace will be the first to profit by a general and clearer definition of this matter.

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Here again a practical limitation is added to the general provision. The reservation as far as circumstances may allow " indicates clearly that it is not a matter of giving free rein to methods which might not be marked with prudence, opportuneness, and a just appreciation of events and a sincere desire for peace.

At the end of the first paragraph of Article 3 the Serbian delegation desired to replace the words "Powers at variance" with the words "Powers between which a serious dispute has arisen which might lead to a breach of peaceful relations." The Commission satisfied this suggestion by stating that Article 3 has in view, in effect, the same situation as Article 2, so far as the character of the difference giving rise to good offices and mediation is concerned.

The Russian draft dealt principally with the offer of good offices and mediation as a means of preventing armed conflicts. An additional provision, introduced by his Excellency Count NIGRA, insists upon the right of friendly intervention, even during the course of hostilities. At the same time it attaches to the exercise of mediation the character not only of a useful method, but of a measure "which can never be regarded by one or the other of the parties in dispute as an unfriendly act." The first delegate from Italy pointed out, and not without reason, the importance of this last provision as a guaranty given in

advance to the Powers who may be moved by the desire to exercise their power of intervention without possible apprehension.

ARTICLE 4

The part of the mediator consists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at variance.

Article 4 intends to set forth in a general way the character of the mediator. It summarizes this in two words "reconciliation and appeasement." Reconciliation of the opposing claims, appeasing the feelings of resentment to which the conflict may have given rise.

ARTICLE 5

The functions of the mediator are at an end when once it is declared, either by one of the parties to the dispute, or by the mediator himself, that the means of reconciliation proposed by him are not accepted.

The mission of the mediator may be crowned with success: in that case there is no difficulty to be feared. Having in view a different outcome, it is not unimportant to fix the period when the mediator is discharged from the task which he has assumed. From this point of view Article 5 declares that "the functions of the mediator are at an end when once it is declared, either by one of the parties to the dispute, or by the mediator himself, that the means of reconciliation proposed by him are not accepted."

ARTICLE 6

Good offices and mediation, undertaken either at the request of the parties in dispute, or on the initiative of Powers strangers to the dispute, have exclusively the character of advice and never have binding force.

Article 6 insists upon the essential characteristic of good offices and mediation. This characteristic is that of simple advice.

Mediation is not arbitration: the arbitrator is a judge and renders a binding

decision.

Mediation is not intervention by authority, whether in the internal affairs of a State or in its foreign relations.

[79] What is called "armed mediation" is not mediation.

mediation and coercion are contradictory.

These two terms

Nations cannot deduce from the provisions of the present Convention concerning good offices and mediation any right whatever to exercise supremacy, to impose their individual or collective will by obligation or constraint. The sphere: of mediation is and should remain the sphere of advice, offered or requested in a friendly way, freely accepted or declined.

ARTICLE 7

The acceptance of mediation cannot, unless there be an agreement to the contrary, have the effect of interrupting, delaying, or hindering mobilization or other measures of preparation for war.

If it takes place after the commencement of hostilities, the military operations in progress are not interrupted, unless there be an agreement to the contrary.