of treaties made more than two hundred and fifty years ago; it includes a great number of historical precedents, or questions about colonization, of jurisdiction over the barbarous tribes, as well as questions of the weight and authority to be given to different maps. Upon these latter both parties will lay great stress, in order to prove that their contentions have already been recognized and admitted. Up to the moment of the decision of the tribunal it will be impossible to know what kind of facts and what argumentation have determined the award. Now the seeking of new facts is limited to that category. If that inquiry should be successful, for example, if a new map or a new document of incontestable and unquestioned authority should be found, it is evident that the interested party would refuse to submit to an award which could not be rectified in a legal and regular

manner.

I confess that I was greatly astonished to hear Mr. MARTENS say that the moral authority of the Court of Arbitration would be impaired by our article, and that the sentiment of responsibility would disappear in the minds of the arbitrators. On the contrary, I maintain that the moral authority of the judgment will be enhanced by the fact that there is in existence a provision for correcting errors, of which the losing party may take advantage, during a term which should not be too long, and that at the end of that term the civilized world ought to admit, and surely will admit, that substantial justice was done between the two parties. Furthermore, the responsibility of the arbitrators is enhanced rather than diminished by their power and their duty to reconvene again upon their judgment in a proper case.

It seems to me that Mr. MARTENS most assuredly made a mistake in saying that tradition and the force of precedent is opposed to a rehearing in cases of arbitration.

I must admit that in all the treaties of arbitration for special cases up to this time, there has not been a provision for a rehearing, and in the particular special treaties of the future there will no longer be any necessity for it. The reason for this is that the entire idea of arbitration is relatively new, and that it has hitherto been considered only as a temporary method of settling controversies as they arose. The only general treaty of arbitration which has been ratified, and which is to-day in force, is that concluded between the Kingdom of Italy and the Argentine Republic. This provides for a rehearing, showing the tendency of public opinion and also of the most competent opinion of experts in international law.

But, as I have already said, our duty in this Conference is not to legislate for particular cases, but to uphold an ideal, to declare to the world that which the representatives of all the civilized nations consider desirable and practically attainable. We cannot possibly put professional regularity or pedantic rules of procedure above the attainment of substantial justice. We have succeeded, after much labor and by reason of mutual concessions, in elaborating a project for the peaceable settlement of international conflicts. It is of the last importance that this project should contain, however simply, at least all essential features guaranteeing in the greatest possible measure international justice.

The representatives of the United States of America considering this article, or some other provision equally efficacious to rectify manifest errors, as an essential part of an acceptable project, would have to ask for new instructions from their Government, giving them power to join their colleagues of the Conference in any plan which should not contain a similar provision. It is for this reason

that they make a most warm and urgent appeal to the committee to leave intact the principle expressed in the article proposed in the name of the Government of the United States.

Chevalier Descamps has listened very attentively to the two series of arguments in the matter of revision.

In his opinion, the difficulty arises from the conflict of principles, equally worthy of respect, that have been advanced by both sides.

Justice must be done; how then can we accept the sanction of an evident error?

Suits between nations must be terminated and differences between them must not be allowed to drag on indefinitely. How are we to attain this result if we leave the door open for new judgments?

The advocates of revision have the nobler and finer side. Their conception of justice is perhaps loftier than that of their opponents; but the latter are especially impressed with the fallibility of all human judgments and think that we must not compromise the force and stability of that justice, in order to redress exceptional errors. Is it not to be feared that under the pretext of preserving justice in rare cases, we may compromise it in all cases?

The partisans of revision do not appear to have placed the question where it belongs. In the domain of general rules applying to all controversies between States, should we formulate a principle that threatens to undermine [30] the very institution of arbitration? The more natural thing would seem to

be to set forth in an international code only the principles that strengthen the institution. Contracting parties who have scruples, from the point of view of justice, similar to those of the United States should provide for revision in a special compromis. No revision, which is in conformity with the efficacy of arbitration, must be the rule and revision the exception.

By admitting revision as a general rule we should be rendering the Governments a very poor service: they would be threatened with the danger of no longer being masters at home; their hands would be forced; popular opinion would want them to invent new facts in order to reopen an arbitration case that had been decided against them.

The REPORTER thinks therefore that it would be dangerous and difficult to introduce a provision similar to Article 54 in a general code of arbitration. He hopes that Mr. ASSER'S moderated reading will not be admitted. However, if it should become a question of obtaining unanimity, he would support Mr. ASSER's proposal in a conciliatory spirit.

Mr. Martens asks permission to put certain questions.

What will the situation of the arbitrators be during the suspensive period of three or six months? If the Government which has not won the case, harassed and summoned by public opinion to find a new fact, succeeds in reopening the suit, where will it find arbitrators?

The members of the arbitral tribunal are scattered here and there; they may be absent, sick, dead. What will it do then?

We must distinguish between two points of view: from that of the jurisconsult there is no doubt that revision and even appeal should be demanded. From that of the practical man the love of peace carries the day. To preserve peace he would have all disputes cut short by some radical means. The pacification of two nations is so important in his eyes that he does not wish to run the risk of

jeopardizing it in order to protect certain material interests that may possibly be injured.

He feels it necessary to take this last point of view and therefore asks the Commission to vote against Article 54.

Mr. Seth Low delivers the following address, which Mr. RAFFALOVICH Sums up in French:

In the organization of ordinary justice in almost all the countries represented here, if not in all, a recourse for the purpose of rectifying errors has been provided. This precaution has been taken because experience has shown that such recourse, or rehearing, or revision increases the chances of doing substantial justice between men.

I know that our international arbitration is not like the questions of ordinary justice. It does imply, as Mr. MARTENS has said, the idea of ending international controversies in the interest of peace, even if the solution may be imperfect.

But the necessity of accepting in such a large measure this imperfection is precisely the weakness, and not the strength, of arbitration.

I recognize, as some one has said, that all arbitration which has occurred up to this time has been in virtue of an agreement that has not foreseen or provided for a rehearing. But, on the other hand, the Conference will remember that in the only two treaties which contain a clause for permanent arbitration— the ItaloArgentine treaty, to which reference has already been made, and the AngloAmerican treaty, which was not ratified - a provision was inserted for the purpose of permitting a rehearing under certain determined conditions.

This signifies, as I suppose, that a system of permanent arbitration as distinct from special arbitration in isolated cases necessarily implies the idea of making justice as perfect as possible, and that this idea should be balanced with the desire of terminating the controversy.

I have confidence and hope that this Conference will receive and adopt the idea of a rehearing with the necessary precaution, for it is certain that arbitral procedure should admit the possibility of error, if the great number of judgments of arbitration are to develop in the future into one grand system of international justice.

Mr. Asser recalls the remark made by one of the previous speakers, “Radical measures are the best." This may be so in a parliament, where the majority rules, but in an assembly like this, which may be termed an international parliament, we are often called upon to reach a compromise.

That is the aim of his proposal. He has taken into account all the good reasons put forward by both sides. The partisans of revision will find their wishes met by an article that determines the procedure to be followed in a second hearing and designates it as a practical means within the reach of all the States.

The partisans of no revision also will be satisfied by the exclusion of revision unless there is a special clause in the compromis. If the compromis contains nothing on the subject, the arbitral award will be irrevocable.

Mr. Corragioni d'Orelli states that the delegation of Siam could not vote for [31] the principle of revision either in the form proposed by the American delegates or in that proposed by Mr. ASSER, unless the time within which revision may be demanded were fixed at six months instead of three. He does not need to dwell upon the reasons for this restriction. Difficulties may arise as a result of the distance at which the arbitral tribunal is sitting. The time within

which revision may be demanded is calculated from the date of notification, which is given in the city where the tribunal is meeting.

Jonkheer van Karnebeek has listened attentively to what Messrs. HOLLS and Low have had to say. His opinion has not changed and he remains convinced that revision is dangerous. Moreover, all the arguments of the American delegates concerned not a revision, but an appeal. Now, we are almost all of the opinion that there can be no question of appeal.

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Another objection is the determination of the procedure to be followed. There is mention of a new fact"; but there is nothing more difficult to define. Every legislation has been confronted by this obstacle. Let us not introduce in international relations difficulties that have already proved so great in municipal law.

Although he remains convinced of the danger of revision, he would nevertheless favor the compromise proposal of Mr. ASSER; but in that case the delay of 6 months must be reduced to 3 months, since the former would leave the pending questions open too long.

Mr. Holls states that the American delegation concurs in the wording of Article 54 proposed by Mr. ASSER.

But it proposes an amendment to the effect that the time shall be determined in every case by the parties.

Chevalier DESCAMPS, Mr. CORRAGIONI D'ORELLI, Mr. ASSER, Mr. MARTENS, and Count NIGRA concur in this amendment.

Mr. ASSER's proposal is thus amended and adopted unanimously.

Baron Bildt points out an omission: the text does not take into account a new fact that may come to light between the close of the pleadings and the rendering of the judgment.

The President says that this very proper observation will be taken into

account.

Article 55 is read:

The award is only binding on the parties who concluded the compromis.

When there is a question of interpreting a convention to which Powers other than those concerned in the dispute are parties, the latter notify to the former the compromis they have concluded. Each of these Powers has the right to intervene in the case. If one or more of them avail themselves of this right, the interpretation contained in the award is equally binding on them.

This article is adopted.

Article 56 is read:

Each party pays its own expenses and an equal share of the honoraria of the arbitrators and of the expenses of the tribunal.

Mr. Holls reserves his opinion with regard to this article until the second reading.

This article is adopted.

It is decided that the committee of examination shall meet on Tuesday at 2 o'clock and the Third Commission on Wednesday at 10 o'clock.

The meeting adjourns.

SIXTH MEETING

JULY 19, 1899

Mr. Léon Bourgeois presiding.

Proofs of the minutes of the fifth meeting are distributed among the delegates, and the minutes are adopted subject to such corrections as they may subsequently find necessary.

The discussion opens on Section 3, which had been reserved on the first [32] reading of the draft, in order to allow the delegates of Roumania, Serbia, and Greece to secure instructions from their Governments.

The first delegate of Roumania, Mr. Beldiman, speaks as follows:

The task which devolves upon me to-day is not an easy one, I must admit, for it runs counter to the current of opinion which has grown in this high assembly under the influence of authorities that are incontestable, authorities of the first magnitude in the matter of international law. I even anticipate that we shall have against us all the notable figures in the science of international law whom we are so justly proud to see among the members of the Conference. I confess that under these conditions the contest would be a very unequal one, if it were to be exclusively in the domain of this science. But I am encouraged by the fact that when it is a question of concluding international stipulations which directly affect the mutual relations of States, the doctrine of international law cannot of itself decide in the last resort; it must be in harmony with the legitimate interest of the policies of the States concerned.

Before taking up these questions, I desire first of all to state, in the name of the Royal Government, that after mature reflection it is not prepared to adhere to the articles concerning international commissions of inquiry provided for in Section 3 of the draft Convention.

This decision rests upon considerations of various kinds which I shall take the liberty of setting forth at greater length, in view of the seriousness of this question to us.

While sincerely regretting that we are obliged to declare against the new institution of international law, which the Commission is endeavoring to create, I am, on the other hand, happy to note that Roumania is not the only country to raise serious objections in the matter of principle on this subject.

Our point of view is entirely shared by both Greece and Serbia, and the Governments of these States, which have so many interests in common with us, likewise think that the draft Convention would gain much if it did not contain the section concerning international commissions of inquiry.

As for the exposition which I shall have the honor to set forth, it is of course understood that I am speaking only in the name of my Government.