[1]

FIRST MEETING

MAY 26, 1899 1

Mr. Léon Bourgeois presiding.

The committee named by the Third Commission, at its session on May 26,2 proceeds to the election of its board of officers.

The following are unanimously elected:

President and reporter: Chevalier Descamps.

Secretary: Baron d'Estournelles de Constant is asked to be willing to assume these duties. Mr. Jarousse de Sillac, Attaché of Embassy, will fulfill those of assistant secretary.

The committee reviews the practical methods of studying as promptly as possible the different drafts and amendments which may be laid before it. It acknowledges the receipt of the following documents:

1. "Outlines for the preparation of a draft Convention to be concluded between the Powers taking part in the Hague Conference," submitted by the Russian delegation, with a document attached (Draft arbitral code).

2. Proposal made by his Excellency Sir JULIAN PAUNCEFOTE with a view to the creation of a permanent tribunal of arbitration.*

3. Supplementary note submitted by the Russian delegation for the same purpose."

4. Amendments of his Excellency Count NIGRA to the draft of the Russian delegation.R

The committee decides that this last document shall be printed and distributed, as was decided by the Commission in the case of the three preceding docu

ments.

With a view to permitting the Commission on arbitration to meet as soon as possible, the committee decides to prepare for Monday, May 29, a study of the first six articles of the Russian draft, concerning good offices and mediation. The meeting adjourns.

1 House in the Wood. Present: Their Excellencies Count NIGRA, Sir JULIAN PAUNCEFOTE, honorary presidents of the Third Commission; Messrs. ASSER, Chevalier DESCAMPS, Baron D'ESTOURNELLES DE CONSTANT, HOLLS, LAMMASCH, MARTENS, ODIER, Doctor ZORN, members of the committee of examination.

2 See the minutes of that meeting.

8 Annex 1.

* Annex 2, A and B.

5 Annex 3.

• Annex 4.

[2]

SECOND MEETING

MAY 29, 1899 1

Mr. Léon Bourgeois presiding.

The minutes of the last meeting are adopted.

Chevalier Descamps presents the proof of the general abstract of clauses of mediation and arbitration involving Powers represented at the Peace Conference — an abstract which he agreed to make at the request of the Third Commission.2 Mr. Léon Bourgeois, after having expressed the thanks of the Committee to Chevalier DESCAMPS, gives him the floor.

Chevalier Descamps speaks as follows:

Upon the initiative of an august person there has been put before civilized States for their consideration the question of the strengthening of international peace. The Powers represented at the Hague Conference are called upon, in a spirit of mutual good-will, to seek the most suitable means to ensure the accomplishment of this great purpose. There is no more magnanimous purpose than that of guaranteeing to peoples "the benefits of a real and lasting peace," and it is a task, noble above all others, for States to give through international agreements solemn avowal of the principles of equity and law, upon which reposes the security of States and the welfare of peoples."

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The provisions which we are to prepare are directly concerned with this purpose.

While the Second Commission has for its mission, in formulating the laws of war, to determine measures suitable to correct the abuses and alleviate the rigors of armed conflicts, we have for our immediate object a search for institutions and fundamental guaranties of such a character as to be powerful safeguards for, or to bring about the prompt restoration of, the peaceful course of the life of nations.

From this point of view the institution of good offices and mediation, international commissions of inquiry, and arbitration claim our attention.

The remarkable draft presented by the Russian delegation, the proposal made by the first delegate of Great Britain, that which the delegation of the United States announces that it has presented, the amendments already introduced by the first delegate of Italy, all these constitute just so many manifestations of the desire of Powers to reach conclusions upon this subject worthy of our age of progress and of great value to the general welfare of humanity as well as to the individual welfare of the various members of the international community.

1 House in the Wood. Present: Their Excellencies Count NIGRA, Sir JULIAN PAUNCEFOTE, honorary presidents of the Third Commission; Chevalier DESCAMPS, president and reporter of the committee of examination; Messrs. ASSER, Baron D'ESTOURNELLES DE CONSTANT, HOLLS, LAMMASCH, MARTENS, ODIER, Doctor ZORN, members of the committee of examination. 2 Annex 5.

The discussions which are about to begin in the committee of examination will undoubtedly show us that these propositions, born of a common desire to serve the interests of peace in the modern world, can be brought into agreement in some better form where their representative tendencies will be blended together so far as they possess new ideas that are legitimate, beneficial, and practically capable of realization. It will be the highest task of the PRESIDENT to promote this happy blending of ideas.

At the outset of our labors, it is not without interest to proceed to a rapid examination of all of the provisions which are submitted to us relating to the first object of our deliberations: good offices and mediation. Such an examination seems to be the most natural and practical introduction to our deliberations. We shall take as a basis for our observations the first six articles of the Russian draft communicated to the members of the Commission under this title: "Outlines for the preparation of a draft Convention to be concluded between Powers taking part in the Hague Conference."

The first article covers in a general way the peaceful settlement of international disputes.

The Powers there declare that they have agreed to use their best efforts to [3] bring about, by peaceful means, the settlement of disputes which may arise

between them. Perhaps it will be proper, considering the general character of this article, to substitute for the word "dispute" the generic term “difference." Perhaps the course of the discussion will lead us to take this article out from under the title "Good offices and mediation" and give it a position suitable to it in a collection of provisions relating to the organization of peace. Provisionally, this article might be adopted in its present form. In the main, it states only the firm determination of the Powers to make way for pacific means, as against violent means, for the termination of disputes between States, and the sincere desire which moves them to endeavor to realize, in the world of facts, international pacification. Looked at from this point of view it seems to be a translation into the language of the law of nations of this remarkable passage from the message of His Majesty the Emperor of Russia: "The preservation of peace has been put forward as the object of international policy."

So far as Articles 2 to 6 of the Russian draft are concerned, the various points to be successively studied appear in the following order:

First, we must examine the question of recourse to mediation by the parties. at variance before other action.

Secondly, we must consider the matter of the offer of mediation by Powers. strangers to the difference.

Finally, we must direct our attention to the three matters common to these two kinds of mediation: the general rôle of the mediator, the time when the mediator's functions cease, and the essential character of these functions. These matters will no doubt lead us to place Article 5 of the Russian draft immediately after Article 2 and consequently change the arrangement of the other articles.

Touching the first and very important question, that of recourse to mediation by the parties at variance, before other action, I observe that Article 2 aims at three clearly distinct points.

It sets forth first the case in which we intend to formulate a new rule of international law, and it describes this case in these words: "in case of serious disagreement, before an appeal to arms." To my mind it would be possible to adopt a more precise terminology to describe the cases in question and to make

the terminology the same in the later articles bearing on the same case, for instance Article 5.

Article 2 then contains the general pledge of such recourse before other action; that is a considerable step in advance when compared with the present situation.

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Article 2 finally reproduces the modifications contained in the vau expressed in the thirty-third Protocol of the Congress of Paris of 1856: " so far as circumstances admit." Suppose that we adopt a similar modification, there will be then opportunity to examine into the question as to whether the phraseology is satisfactory and whether, by providing the exception, it sufficiently protects the rule.

The second question to be studied by us, that of the offer of mediation by Powers strangers to the dispute, is itself of capital importance: great progress may also be made on this point. One of the principal objects of the present Conference being to prevent armed conflicts, the search for methods of making mediation easier and more frequent cannot fail to have a considerable place in our deliberations. It is of great importance, in the general law of nations, to vest with the character of a useful institution the offer of mediation, applied when circumstances are favorable, to disputes in which a breach of pacific relations seems to be threatened, without also distinguishing - as does the Russian draft, wrongly it seems to us between disputes of a political and a legal character. In fact it is not the political or other character of the serious disagreement but its immediate relation to the breach of pacific relations which can in certain respects justify the offer of mediation. In this connection it seems to us that Article 5 of the Russian draft must be fundamentally revised.

Several revisions as to form seem equally necessary, not only in that article which describes the role of the mediator in a different manner from Article 3, but in the following articles. That is, however, a secondary matter. The important thing is to make a vigorous effort and to effect some marked progress in the double pathway of recourse to mediation by the parties in dispute on the one hand, and the offer of mediation by Powers strangers to the dispute, on the other. Good offices and mediation have certainly not failed to exercise a happy influence at times in the past, and many facts might be recalled here in support of this statement. They do not possess, however, the character which belongs to them in a society composed of civilized States fundamentally interdependent one upon the other. It is possible, it is wise, it is entirely worthy of modern States, in taking necessary precautions against possible abuses, to create these institutions as powerful factors working for the maintenance of international peace. It is to the realization of this work that we shall consecrate our first efforts by applying ourselves to the improvement of the principles furnished to us by the Russian draft.

[4] Mr. Martens replies with this general observation:

The Russian proposal is especially of a practical character: it cannot escape criticism either from a scientific viewpoint or from the point of view of phraseology, but it is the result of international experience.

Mr. Bourgeois replies that such is the estimation in which the committee held this work, and Chevalier Descamps is anxious to confirm this statement, at the same time maintaining that his criticisms have a sound basis.

The committee passes to the reading of the articles.

Examination, upon First Reading, of the Russian Draft Relating to "Mediation" and Good Offices " 1

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ARTICLE 1

(It is understood, upon the motion of His Excellency Count NIGRA, that this article will be reserved for a place at the head of the Convention to be adopted.)

With the purpose of obviating, as far as possible, recourse to force in international relations, the signatory Powers have agreed to use their best efforts to bring about by pacific means the settlement of disputes which may arise between them.

This article is adopted, with the reservation above indicated except for the substitution of the word "differences" for "disputes."

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.

Mr. Asser asks if there is a reason for retaining these words: " so far as circumstances admit."

He adds that this clause which was included in the Act of Paris of 1856 was omitted in the General Act of Berlin of 1885. To restore it would be to take a step backward.

His Excellency Count Nigra supports this statement and says that the insertion of this clause would in some measure destroy the article.

The President observes that the Act of Berlin is a special act for a definite purpose; the Powers in drafting that act desired that serious disputes, which were localized in Africa, so far as the subject matter thereof was concerned, should not degenerate into a casus belli.

If to-day a general scope be given to this special act we cannot determine in advance what will be the extent of its application.

Doubtless the Powers might bind themselves to ensure such application, but what would be the sanction therefor?

Is it not to be feared that the promises thus made will be evaded or violated, and this would then be a serious blow to the Convention and even to the authority of the signatory Powers? Would it not be better to retain the reservation provided in the Russian proposition?

Mr. Asser insists upon his observation and proposes that the reservation be stricken out.

Chevalier Descamps observes that the reservation in fact dates from 1856. He adds that so far as dangers to be feared are concerned we would not exaggerate anything; the mediator is not vested with any powers until both of the parties have consented thereto.

The words "so far as circumstances admit" might suggest too arbitrary an interpretation and would tend to cause the rule to be swallowed by the exception.

Mr. Martens does not attach great importance to this omission, because in fact, whether it is so stated or not, Powers will not have recourse to good offices unless circumstances permit.

1 See annexes 1 and 8.