bring about by pacific means the settlement of disputes which may arise between them. ARTICLE 2 Consequently, the signatory Powers have decided that, in case of serious disagreement or dispute, before an appeal to arms, they will have recourse, so far as circumstances admit, to the good offices or mediation of one or more friendly Powers. ARTICLE 3 In the case of mediation accepted spontaneously by the States at variance, the object of the Government acting as mediator is to reconcile the opposing claims and appease the feelings of resentment which may have arisen between these States. ARTICLE 4 The part of the Government acting as mediator is at an end when the settlement proposed by it or the bases of a friendly settlement which it may have suggested are not accepted by the States at variance. ARTICLE 5 The Powers consider it useful in case of serious disagreement or conflict between civilized States concerning questions of a political nature, independently of the recourse which these Powers might have to the good offices and mediation of Powers not involved in the dispute, for the latter, on their own initiative and so far as circumstances will allow, to offer their good offices or their mediation in order to smooth away the difficulty which has arisen, by proposing a friendly settlement, which without affecting the interest of other States, might be of such a nature as to reconcile in the best way possible the interests of the parties to the dispute. It is of course understood that mediation and good offices, undertaken either on the initiative of the litigant parties or upon that of the neutral Powers, have strictly the character of friendly advice and no binding force whatever. International arbitration With regard to those controversies concerning legal questions, and especially with regard to those concerning the interpretation or application of treaties in force, arbitration is recognized by the signatory Powers as being the most effective and at the same time the most equitable means for the friendly settlement of these disputes. ARTICLE 8 The contracting Powers consequently agree to have recourse to arbitration in cases involving questions of the character above mentioned, so far as they do not concern the vital interest or national honor of the parties in dispute. ARTICLE 9 Each State remains the sole judge of whether this or that case should be submitted to arbitration, excepting those enumerated in the following article, in which case the signatory Powers to the present document consider arbitration as obligatory upon them. ARTICLE 10 Upon the ratification of the present document by all the signatory Powers, arbitration will be obligatory in the following cases, so far as they do not concern the vital interests nor national honor of the contracting States: I. In case of differences or disputes relating to pecuniary damages suffered by a State, or its nationals, as a consequence of illegal actions or negligence on the part of another State or its nationals: II. In case of disagreement relating to the interpretation or application of the treaties and conventions mentioned below: 1. Treaties and conventions relating to the posts and telegraphs, railroads, and also those bearing upon the protection of submarine telegraph cables; regulations concerning methods to prevent collisions of vessels on the high seas; conventions relating to the navigation of international rivers and interoceanic canals. 2. Conventions concerning the protection of literary and artistic property as well as industrial property (patents, trade-marks, and trade-names); conventions relating to money and measures; conventions relating to sanitation and veterinary surgery, and for the prevention of phylloxera. 3. Conventions relating to inheritance, exchange of prisoners, and reciprocal assistance in the administration of justice. 4. Conventions for marking boundaries, so far as they concern purely technical and non-political questions. ARTICLE 11 The enumeration of the cases mentioned in the above article may be completed by subsequent agreements between the signatory Parties of the present act. Besides, each of them may enter into a special agreement with any other Power, with a view to making arbitration obligatory in the above cases before general ratification, as well as to extend the scope thereof to all cases which the State may deem it possible to submit to arbitration. ARTICLE 12 In all other cases of international disputes, not mentioned in the above articles, arbitration, while certainly very desirable and recommended by the present act, is only voluntary; that is to say, it cannot be resorted to except upon the suggestion of one of the parties in litigation, made of its own accord and with the express consent and full agreement of the other party or parties. With a view to facilitating recourse to arbitration and its application, the signatory Powers have agreed to define by common agreement the fundamental principles to be observed by the institution, and the rules of procedure to be followed during the examination of the dispute and the delivery of the arbitral decision in cases of international arbitration. The application of these fundamental principles, as well as of arbitral procedure, indicated in the appendix to the present article, may be modified by a special agreement between the States which resort to arbitration. International commissions of inquiry ARTICLE 14 In cases which may arise between the signatory States where differences of opinion with regard to local circumstances have given rise to a dispute of an international character which cannot be settled through the ordinary diplomatic channels, but wherein neither the honor nor the vital interests of these States is involved, the interested Governments agree to form an international commission of inquiry in order to ascertain the circumstances forming the basis of the disagreement and to elucidate all the facts of the case on the spot by means of an impartial and conscientious investigation. ARTICLE 15 These international commissions are formed as follows: Each interested Government names two members and the four members together choose the fifth member, who is also the president of the commission. In case of equal voting for the selection of a president, the two interested Governments by common agreement address a third Government or a third person, who shall name the president of the commission. ARTICLE 16 The Governments between which a serious disagreement or a dispute under the conditions above indicated has arisen, undertake to supply the commission of inquiry with all means and facilities necessary to a thorough and conscientious study of the facts in the case. ARTICLE 17 The international commission of inquiry, after having stated the circumstances under which the disagreement or dispute has arisen, communicates its report to the interested Governments, signed by all the members of the commission. ARTICLE 18 The report of the international commission of inquiry has in no way the character of an award; it leaves the disputing Governments entire freedom either to conclude a settlement in a friendly way on the basis of the above-mentioned report, or to resort to arbitration by concluding an agreement ad hoc, or finally, to resort to such use of force as is accepted in international relations. II.-EXPLANATORY NOTES CONCERNING ARTICLES 5 AND 10 OF THE ABOVE OUTLINES FOR THE PREPARATION OF A DRAFT CONVENTION (a) EXPLANATORY NOTE CONCERNING ARTICLE 5 OF THE RUSSIAN DRAFT The Conference which is about to meet at The Hague is essentially different from those which were held in Geneva (in 1864), at St. Petersburg (in 1868), and at Brussels (in 1874). These early conferences intended to humanize war after war had been declared; while the assembly convoked at The Hague must devote itself especially to the discovery of methods to prevent the very declaration of war. The Hague Conference therefore must be a Peace Conference in the most positive sense of the term. Practice in international law has worked out a complete set of methods to prevent war by the pacific settlement of international disputes, and among [122] these must be set, above all, good offices, mediation and arbitration. It seems very natural that the Conference should consider the perfecting of the guaranties and methods already existing for the assurance of lasting peace among nations, instead of seeking new means which have not been tried and sanctioned by practice. With this in mind the Conference should especially give its attention to "good offices" and "mediation" by third parties; that is, by Powers which are not involved in the conflict presumed to exist.1 Mediation should doubtless be, from its very nature, placed among the most useful and practical methods in the law of nations. Being a necessary response to that real community of material and moral interests which creates an international union among the various States, mediation should inevitably acquire a continually increasing importance and value, in proportion to the increasing intimacy among States and the development of their international relations. The possible advantage of mediation, if we compare it with the other methods used to settle international disputes, is especially the remarkable elasticity of its operation, the ease with which it is adapted to the particular circumstances of each given case, as well as the variety of forms arising from this ease of adaptation. Being dependent upon the free consent of the parties, mediation does not in the least threaten the principle of their sovereignty nor the liberty or independence of States; it influences the arbitrator freely chosen by them without ever opposing him, without ever calling him in question. There is no doubt that arbitration, generally speaking, is a more effective and more radical method than mediation; but arbitration being of a legal nature, its application is essentially and even exclusively restricted to cases where there is a conflict of international rights, while mediation, although of a political character, is equally applicable to the conflicts of interests which most often threaten. peace among nations. Finally, it is equally essential to note that mediation is distinguished from other analogous modes of action by an astonishing simplicity of application which demands no previous preparation whatever. This instrument, in daily use in diplomacy, tactfully and skillfully handled and guided 'The distinction made between "good offices" and "mediation" is entirely theoretical. These methods are legally identical in character and differ only in degree and the importance of their results. Diplomacy has never insisted upon this distinction. (Cf. Article 9 of the Treaty of Paris of 1856, and Article 23 of the protocol of the Congress of Paris, 1856.) by a sincere desire to serve in the work of peace, seems called upon to play a striking and beneficent rôle in the future. However, mediation has up to the present played a most modest rôle in the settlement of international difficulties; this statement is supported by the history of even the most recent disputes. If we look for the reason for this fact, we must consider first how unsatisfactory is the status of mediation in the theory as well as in the practice of international law. By the terms of Article 8 of the Treaty of Paris the Sublime Porte, as well as the other signatory Powers to that treaty, is bound to submit every future disagreement which may arise between any of them to the mediation of the other Powers, to prevent the use of force. Giving this idea a more general scope, Article 23 of the protocol of the Congress of Paris, inserted at the suggestion of Lord Clarendon, British plenipotentiary, expresses the desire that States between which serious disagreements may arise shall request the good offices of a friendly Power so far as circumstances permit rather than resort to arms. In the same way, at the African Conference at Berlin, in 1885, the Powers mutually agreed to resort first of all to mediation by one or several neutral States in case disagreement arose between them concerning the Kongo and its basin. The provisions above set forth are inspired by one and the same thought expressed in almost identical terms. They oblige all the States interested in the dispute to request mediation; they do not mention the duty of neutrals to propose it. From this point of view mediation imposes duties upon the States directly interested but not upon neutral States. This sort of mediation, very irregular from a theoretical point of view, has also the disadvantage of making mediation unattainable from a practical point of view. The request for mediation necessarily presupposes a previous agree ment between the interested States with regard to the necessity and the [123] opportunity for it. Now, such an agreement is not always possible in the heat of a dispute between interests diametrically opposed to each other. In any case we cannot consider the making of the request for mediation obligatory on the part of the States whose interests are in question, especially since that requires that opposing desires be harmonized and that the parties agree in the choice of a mediator. Treaties, unhappily still less numerous, which make the request for arbitration obligatory, at the same time regulate, and generally in advance, the organization of the tribunal called upon to render the arbitral decision, without making this organization dependent upon the consent or dissent of the interested parties.1 It goes without saying that treaties cannot deal with the obligation of parties to choose a mediator, whose advice could be only of moral effect proportionate to the respect and confidence which he inspired in the interested parties. The designation of mediators must necessarily be brought about by the agreement of the parties; now, since this agreement depends absolutely upon their good-will, and may, even if this good-will is secured, be unattainable, it follows that we should not consider the request for mediation as obligatory upon the States 'See, for example, Article 16 of the General Postal Convention signed at Berne in 1874, and Article 8 of the treaty signed at Washington in 1890. |