SEVENTH MEETING

JULY 20, 1899

Mr. Léon Bourgeois presiding.

The President observes that proofs of the minutes of the last meeting will be distributed among the members who took part therein. These members will kindly inform the secretariat of any changes that they desire made.

The order of business calls for the second reading of the arbitration draft. The discussion on commissions of inquiry, however, will be reserved for the next meeting, some members not yet having received instructions on the subject.

Chevalier Descamps, reporter, says that the committee has examined a number of the points upon which observations have been made. He will indicate them as the articles are submitted for discussion.

The President reads 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.

Chevalier Descamps, reporter, makes certain explanations with regard to two slight changes which the committee has made in this article.

[46] Mr. Beldiman remarks that on the first reading it was said that this article might be considered as a general declaration which would serve as a preamble to the Convention. He inquires why it has been preserved as a special article.

He adds that, in his opinion, the word agree has a different meaning in the following articles from what it has here.

Chevalier Descamps, reporter, replies that it is plain that the article in question does not imply a formal engagement between one State and another.

It contains merely a general promise to use one's best efforts, and not a special engagement.

Mr. Beldiman desires to have this explanation inserted in the report. The President concurs in the explanation made by the reporter and states that this will be done.

The article is adopted.

The President reads Article 2, which is adopted with the modification proposed by Mr. VELJKOVITCH. The word agree will be substituted for have decided, since, in the opinion of the delegate of Serbia, the former expression has a more contractual meaning.

The article is adopted in the following form:

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

The Commission passes to Article 3.

Mr. Veljkovitch would like to have Article 3, in which mention is made of offered mediation, made to accord with Article 2, which treats of requested mediation. It should likewise be stated that it must be a question of a serious dispute. He therefore proposes that the expression "between whom there has arisen a serious dispute that may lead to a rupture of peaceful relations” be substituted for the words "at variance" appearing in the first paragraph.

Chevalier Descamps is of the opinion that the two articles are in accord. In his opinion, there is no possible doubt but that Article 3 likewise applies only to cases of serious disagreement that might lead to war.

The new wording, however, has the defect of rendering the phraseology more uncertain. The question might be examined by the committee of examination. The President shares this view.

Mr. Veljkovitch says that since the explanations which have been made accord with his view, he would be satisfied if the explanations are inserted in the minutes as being the Commission's official interpretation.

It is decided that this shall be done.

Mr. Lammasch presents an additional argument in favor of this interpretation: the fact that in paragraph 2 mention is made of the course of hostilities proves that it is indeed a case of serious disagreement or of a dispute that might lead to the rupture of peaceful relations that the Commission had in mind.

Mr. Veljkovitch observes that it is stated in paragraph 3 that the exercise of the right to offer good offices may never be considered by either of the parties at variance as an unfriendly act. It would likewise be proper to provide for the case in which the Power to whom good offices have been tendered is not in a position to accept them, and he proposes that it be decided that the refusal in question likewise may not be regarded as an unfriendly act.

Mr. Asser observes that this question was examined by the committee of examination, who were of the opinion that it was not desirable to insert a clause of this kind in a convention whose aim was to encourage all measures which might bring about peace. Mr. VELJKOVITCH's proposal would tend to thwart this purpose; it would be almost an invitation to refuse mediation. It goes without saying that a refusal may never be regarded as an unfriendly act.

The President and the Reporter observe that Article 6 does, as a matter of fact, meet Mr. VELJKOVITCH's wishes, for it covers the case of an offer as well as that of a request.

His Excellency Count Nigra, as author of paragraph 3 of this article, desires to state that he never for an instant considered that an offer of this kind might not be of a friendly nature.

Dr. Zorn states that what Mr. VELJKOVITCH has said is perfectly evident. Our work here is in the interest of the general peace, and that being so, it is not fitting to speak of a refusal, which is an act that may bring about war.

Mr. Veljkovitch does not see why the refusal of an inopportune offer of good offices should be regarded as an act of greater danger to the maintenance of peaceful relations between the States than the inopportune offer itself. Quite the contrary, it is the offer that may cause friction and envenom the relations between

the States, while the refusal is nothing more than a legitimate act of self-defense against outside interference.

[47] Mr. Lammasch remarks that Article 5 provides for the case of an interruption of mediation; it is therefore evident a fortiori that mediation may be declined at the outset.

Mr. Beldiman is of the opinion that the Commission might confine itself to mentioning this interpretation in the minutes.

The President states that the refusal of the offer may not be regarded as an unfriendly act.

There is no doubt on this score.

Articles 5 and 6 would seem to give sufficient satisfaction in this respect.

But the committee does not wish to appear as encouraging refusal by adopting an express provision, as desired by the delegate of Serbia.

Mr. Veljkovitch would be satisfied with this interpretation, provided it be adopted by the Commission and inserted in the minutes as the official interpretation.

It is decided that this shall be done.

Article 3 is adopted without change as follows:

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.

Article 4 is adopted without change in the following form:

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 5 is adopted with a slight modification made by the committee of examination, in order to include in it every means of conciliation. It will read as follows:

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.

Articles 6, 7, and 8 are adopted without change in the following form:

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 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.

ARTICLE 8

The signatory Powers are agreed in recommending the application, when circumstances allow, of special mediation in the following form:

In case of a serious difference endangering the peace, the States at variance choose respectively a Power, to which they entrust the mission of entering into direct communication with the Power chosen on the other side, with the object of preventing the rupture of pacific relations.

For the period of this mandate, the term of which, unless otherwise stipulated, cannot exceed thirty days, the States in dispute cease from all direct communication on the subject of the dispute, which is regarded as referred exclusively to the mediating Powers, which must use their best efforts to settle it.

In case of a definite rupture of pacific relations, these Powers are charged with the joint task of taking advantage of any opportunity to restore peace.

Mr. Miyatovitch reads the following declaration, in the name of the Royal Government of Serbia:

In the name of the Royal Government of Serbia, we have the honor to declare that the adoption by us of the principle of good offices and mediation does" [48] not imply recognition of the right of third States to use these means except with the extreme caution required by the delicate nature of such measures. We shall admit good offices and mediation only on condition that they preserve fully and wholly their character of purely friendly counsel, and we can never accept them in such form and circumstances as might brand them with the stamp of intervention.

tion.

The delegate of Serbia is informed that official note is made of his declara

His Excellency Noury Bey states that, not having received instructions, the Turkish delegation abstains from voting on paragraph 1.

The Commission passes to Section 4.

Article 14 is adopted without change in the following form:

International arbitration has for its object the settlement of disputes between States by judges of their own choice and on the basis of respect for law.

As regards Article 15, Mr. Pompilj says that the words "questions of law " (questions de droit) might be ambiguous. It is as if we admitted that there are wars arising from other causes than the claiming or defense of a right (droit). He proposes that the expression" questions of a legal nature" (questions d'ordre juridique) be substituted.

This amendment is adopted.

The article will therefore read as follows:

In questions of a legal nature, and especially in the interpretation or application of international conventions, arbitration is recognized by the signatory Powers as the most effective and at the same time the most equitable means of settling disputes which diplomacy has failed to settle.

Mr. Beldiman has been charged by his Government to make the following declaration:

The Royal Government of Roumania, which is entirely in favor of optional arbitration, the great importance of which in international relations it fully appreciates, does not understand that by Article 15 it is agreeing to accept arbitration

in all cases therein provided for, and it feels that it must formulate express reservations in this respect.

It can therefore vote for this article only with this reservation.

The delegate of Roumania is informed that official note is made of his declaration.

With regard to Article 16, Mr. Beldiman observes that his Government can adhere to it only if it is understood that it does not relate to disputes which have arisen before the adoption of the project. He reads the following declaration:

The Royal Government of Roumania declares that it can adhere to Article 16 only with the express reservation, to appear in the minutes, that it is resolved not to accept in any event international arbitration for the settlement of disputes or disagreements which have arisen previous to the conclusion of the present

convention.

The delegate of Roumania is informed that official note is made of this declaration.

Mr. Veljkovitch understands Article 16 as being, not an engagement, but simply an option, of which the respective Governments are absolutely free to avail themselves or not. Consequently they may, if they are able to come to an agreement, make conventions with regard to controversies which have already arisen, but they are not obliged to do so.

Mr. Rolin desires to state that this declaration can in no way bind the other Powers.

Mr. Stancioff observes that Article 16 speaks of the arbitration convention, without having given a preliminary explanation of that convention. He would like to inquire whether we are to understand by the expression "arbitration convention" the agreement by means of which existing differences are to be settled by arbitration, and whether that convention will contain the principles which will guide the arbitrators in their consideration and decision of the difference. Article 16 is adopted in the following form:

The arbitration convention is concluded for questions already existing or for questions which may arise eventually.

It may embrace any dispute or only disputes of a certain category.

With regard to Article 17, Mr. Stancioff says that Articles 17 and 30 speak of the agreement to comply with the arbitral award.

Is it not advisable to state whether there is a case in which the parties are released from their engagement, and should not the contents of Article 26 be quoted here? (Paragraph 1: The arbitral award is void in case of a void. compromis or exceeding of power or of corruption proved against one of the arbitrators. Old draft of arbitration code.)

[49] Articles 17 and 18 are likewise adopted in the following form:

ARTICLE 17

The arbitration convention implies an engagement to submit in good faith to the arbitral award.

ARTICLE 18

Independently of general or private treaties expressly stipulating recourse to arbitration as obligatory on the signatory Powers, these Powers reserve to themselves the right of concluding, either before the ratification of the present act or later, new agreements,