The President opens the general discussion upon the question of the permanent tribunal of arbitration.

Chevalier Descamps has the floor: The institution of a permanent tribunal of arbitration responds to the juristic consciences of civilized peoples, to the progress achieved in national life, to the modern development of international litigation, and to the need which compels States in our days to seek a more accessible justice in a less precarious peace.

It can be a powerful instrument in strengthening devotion to law throughout the world.

And it is a fact of capital importance that three projects of this kind have been presented by three great Powers. These projects are diverse in character, but it seems possible to harmonize them in a manner which will accomplish all the results immediately attainable.

The establishment of permanent arbitral jurisdictions is by no means an innovation without precedent in international law. The Convention of Berne of October 14, 1890, provides for the establishment of a free tribunal of arbitration, to which the German delegation, at the very first Conference in 1878, wanted to confide most important attributes. Other offices of a permanent juridical nature are still in operation in the law of nations. The establishment of the permanent tribunal of arbitration presents no insurmountable difficulties, and it may easily be the most important factor in the international problem before the Conference of The Hague.

The difficulties which the realization of the magnanimous views of the Emperor of Russia has encountered in other fields are another reason for us to urge forward the organization of mediation and arbitration. We must develop and consolidate the organic institutions of peace. There is on this point a general expectancy in every land, and the Conference cannot, without serious disadvantages, disappoint it.

The proportions which we shall give to this work which we are about to undertake will be, without doubt, modest; but the future will develop whatever fertility this work has for the welfare of the nations and for the progress of humanity.

As for the delegates to this Conference it will be, without doubt, one of the greatest joys of their lives to have cooperated in the achievement of this great result, the fraternal approach of the nations and the stability of general peace.

After this general introduction, Mr. DESCAMPS adds that several improvements might be made in the plans for the arbitral tribunal by borrowing certain provisions from the draft prepared by the Interparliamentary Conference of Brussels.

He reserves to himself the right of calling attention, during the course of the deliberations, to those of these provisions which might be profitably adopted with a view of giving a stronger unity to the new international organism without encroaching upon the sovereignty of States.

Dr. Zorn has listened with the greatest attention and with profound emotion to the preceding declarations; he recognizes to the fullest extent the solemnity of this hour, when the representatives of the greatest civilized Powers are called upon to pronounce judgment upon one of the gravest problems which could be presented to them; he desires to express the sincere hope that the day will come when the noble wish of the Czar may be accomplished in its entirety,

and when conflicts between States may be regulated, at least in the great majority of cases, in so far as they concern neither vital interests nor national honor, by a permanent international court. But, he adds, filled though I am, personally, with this hope, I cannot, I must not, surrender myself to illusions; and such is, I am sure, the opinion of my Government also. It must be recognized that the proposition now proposed and submitted to the judgment of the committee is but a generous project; it cannot be realized without bearing with it great risks and even great dangers which it is simple prudence to recognize. Would it not be better to wait the results of greater preliminary experience upon this subject?

If these experiences prove successful, and if they realize the hopes reposed [19] in them, the German Government will not hesitate to cooperate to that end, by accepting the experiment of arbitration having far greater scope than anything which has been in practice up to this day. But it cannot possibly agree to the organization of the permanent tribunal before having the preliminary benefit of satisfactory experience with occasional arbitrations.

In this situation, continues Dr. ZORN, notwithstanding my intense desire to assist with all my might in bringing the work of this committee to a successful conclusion, I regret to be compelled to move that Article 13 of the original Russian project be made the basis of further discussion instead of the plans for the permanent tribunal, inasmuch as this plan accurately represents the views of the Imperial German Government upon the subject.

The President opens the discussion upon this preliminary proposal of Dr. ZORN.

Mr. Asser recognizes that it would certainly be useful to have experience, but according to him this experience has already been had, in the occasional arbitrations which have heretofore occurred. What was left to try was precisely the plans now proposed, for they all implied the establishment of a court which should be entirely voluntary. It seems to him that the conclusion which the honorable Dr. ZORN has arrived at need not be quite so absolute, and that without receding from the opinion which he has just stated, in a manner which has deeply impressed the committee, he might still postpone further opposing the establishment of the permanent tribunal of arbitration, and might consent to look upon it, according to the expression of his Excellency Count NIGRA, as a "temporary permanent tribunal."

Dr. Zorn was not unmindful of the validity of Mr. ASSER'S argument, but he raised another objection. There was obviously a great difference between an occasional arbitration and the institution of a tribunal permanently charged with exercising the rôle of an arbitrator according to a code of procedure and certain rules determined in advance. Besides, Dr. ZORN wishes to remind the committee that the Russian Government has modified its first project. The German Government had accepted the original Russian project and no other, as the basis of the work of the Conference. He could therefore not to-day accept this experimental establishment of a temporary "permanent tribunal" even provisionally:

1. Because such an establishment has not, according to his view, been foreshadowed in the initial program of the Russian Government;

2. Because practically it was very probable that a provisional permanent tribunal could not be long in becoming definitely and actually permanent.

Under these circumstances Dr. ZORN insists upon the preceding observations.

His Excellency Count Nigra appeals directly to the spirit of conciliation of Dr. ZORN, and in a brief speech he calls attention to the consequences of a negative decision, upon a question which interests all civilized humanity to so great a degree. The impatience with which public opinion awaits the results of our labors has become so great that it would be dangerous to disappoint them entirely, by rejecting the idea of a permanent tribunal. If to all these aspirations the Conference returned a curt non possumus, the dissatisfaction and disappointment would be tremendous.

In such a case the Conference would incur most grave responsibilities before history, before the people represented here, and before the Emperor of Russia.

In conclusion, his Excellency Count NIGRA earnestly requests the German delegate not to refuse categorically to go on with the discussion, but to refer the question once more to his Government.

Chevalier Descamps supports the remarks just made by his Excellency Count

NIGRA.

Dr. Zorn responds that he recognizes the force of these remarks to their fullest extent, and that he would therefore not abstain from cooperating further with the work of the committee in the direction of the permanent tribunal, although it must be clearly understood that he could by no means bind his Government.

This declaration of Dr. ZORN is entered upon the minutes, it being well understood that it reserves his entire liberty of action and ultimate decision.

The preliminary question raised by Dr. ZORN being thus settled, the committee continues the general discussion.

Mr. Martens desires, in his turn, to make the following explanations: When the Russian Government formulated its first proposals concerning arbitration, it doubtless had in view the general outlines of the project which was distributed, but this project was nothing but an outline, and necessarily required many amendments and additions, which the Russian Government only completed by specifying. He has always thought, without going into the details of the question, that this was the time and place to provide for the procedure and for the establishment of arbitral tribunals, always giving to the Powers in litigation complete liberty in choice of arbitrators. The Russian Government considered that its duty was complete when it suggested to the Powers the result of its reflections without wishing tc impose its opinion upon any one.

[20] There were provisions in all of the projects under discussion which naturally would give rise to the fears expressed by Dr. ZORN, but these were misunderstandings which it ought to be easy to dispose of during the discussion which was sure to arise. Might it not be possible, for example, to adopt at the head of all the provisions about the permanent tribunal an article recognizing the absolute liberty of the parties in litigation to make their own free choice? It might be expressed as follows:

In the case of a conflict between the signatory or adhering Powers they shall decide whether the controversy is of a nature to be brought before a tribunal of arbitration, constituted according to the following articles, or whether it is to be decided by an arbitrator or a special tribunal of arbitration.

His Excellency Sir Julian Pauncefote is of the opinion that his project makes an entire and express reservation of the liberty of the parties.

His Excellency Count Nigra asks if the beginning of Article 1 cannot be worded as follows:

With the object of facilitating an immediate recourse to arbitration for international differences which could not be settled by diplomacy, the signatory Powers undertake to organize, etc.

Chevalier Descamps thinks that the heading alone of the articles relating to arbitration might satisfy all the scruples expressed above if it were thus worded: free tribunal of arbitration.

The President considers that as the committee are agreed in declaring that the permanent tribunal of arbitration should not be obligatory upon any one, and as we are all in accord upon this principle, it might be best to reserve the question as to whether it should be expressed in a preliminary article or otherwise.

The committee being of the same opinion as the PRESIDENT upon this point, Mr. Odier wishes to adhere expressly to the declaration previously made by Mr. DESCAMPS and Count NIGRA in favor of the establishment of the permanent tribunal of arbitration: "More than one hope, more than one expectation, of arbitration has dawned on the world; and popular opinion has the conviction that in this direction, above all, important steps will be taken by the Conference. No one can deny, in fact, that we are able at this moment to take a new and decisive step in the path of progress. Shall we draw back, or reduce to insignificant proportions the importance of the innovation expected of us? If so, we should arouse a universal disappointment, the responsibility for which would press heavily upon us and our Governments. The important innovation which we can present to humanity at large is the establishment of a permanent institution which will always be in evidence before the eyes of the world, a tangible result, so to speak, of the progress which had been made."

Although recognizing the force of the objections raised by Dr. ZORN, Mr. ODIER Cordially joins in the wish expressed by Count NIGRA that the German delegate would once more refer the question to his Government.

Mr. Lammasch also wishes to express his opinion and his reservations. Notwithstanding the fact that the circular of Count MOURAVIEFF had made no mention whatever as to the possibility of the establishment of the permanent tribunal, he had not opposed the acceptance by the committee of the project of Lord PAUNCEFOTE as the basis of the discussion, but he was not empowered to act so far as to declare that Austria-Hungary was ready to indorse the establishment of a permanent tribunal. This institution might, indeed, be established in many ways, some of which might be objectionable, according to the further decisions of the Conference. Professor LAMMASCH concludes by saying that he accepted the project of Lord PAUNCEFOTE as the basis of discussion, in order not to delay or hinder the very important work of the committee and that he was ready to take part in the discussion with all possible good-will, but under the express reserve that his participation in the debate could have no other character than that of a preliminary examination of the question, and that it could not for the present in any way commit his Government.

This remark and reservation of Mr. LAMMASCH is duly entered upon the minutes.

Mr. Holls makes a declaration of which the following is a summary:

I have listened with the greatest attention to the important exchange of

opinion which has just taken place between the representatives of different great European States. It has seemed proper to me, representing, as it were, a new Power, that precedence in the discussion should naturally be given to the delegates of the older countries. This is the first occasion upon which the United States of America takes part under circumstances so momentous in the deliberations of the States of Europe, and having heard, with profound interest, the views of the great European Powers, I consider it my duty to my Government, as well as to the committee, to express upon this important subject the views of the Government of the United States with the utmost frankness.

I join most sincerely and cordially in requests which have been addressed to the honorable delegate of the German Empire.

[21] In no part of the world has public opinion so clearly and unmistakably expressed its adherence to the noble sentiments of His Majesty the Emperor of Russia, as in America. Nowhere do more sincere wishes, hopes, and prayers ascend to heaven for the success of this Conference. We have received hundreds of expressions of sympathy and support, not only from the United States, but from the entire American continent; and these manifestations come from organizations of the highest standing and the widest influence.

In consequence, we, the members of this Conference, are bound, so to speak, by a most solemn moral obligation, incurred, not between the Governments, but between the peoples of the civilized world. Let me ask the honorable members of this committee to approach the question before us in a practical spirit, such as is generally attributed to us Americans; let us observe the true state of public opinion. Public opinion, all over the world, is not only eagerly hoping for our success, but it should be added that it has become uneasy and anxious about it. By reason of interests, vital to it, which we have to discuss, it fears that the results of this Conference will turn out purely unsatisfactory, platonic. And it should be recognized that these fears are based upon a recent experience. A conference profoundly interesting to mankind, namely, upon the protection of the interests of labor, met at Berlin upon the noble and generous initiative of the German Emperor. What was the result? Resolutions of a purely platonic character.

Public opinion expects more this time; it will not pardon a new rebuff, and the very hopes which are now concentrated upon us and our work will be the measure of the disappointment which would follow our failure. Without doubt Dr. ZORN is correct in recalling the difference existing between occasional arbitration and that contemplated in the initial Russian draft; but from a practical view-point - the view-point of efficient and critical public opinion all over the world — I venture to say that we shall have done nothing whatever if we separate without having established a permanent tribunal of arbitration. Record is made of Mr. HOLLS' declaration, which is warmly supported by Mr. ASSER, Sir JULIAN PAUNCEFOTE, and Count NIGRA.

The general discussion is closed. The committee begins the reading of the articles.