Examination, Upon Its First Reading, of the Plan for the "Permanent Tribunal of Arbitration" by His Excellency Sir Julian Pauncefote1

(Continued)

A general exchange of views takes place regarding Article 1 of Sir JULIAN PAUNCEFOTE's draft.

The committee shares the view of Mr. BOURGEOIS regarding the words tribunal or court the use of which seems premature. We do not know yet exactly what we shall do, and until some change is decided upon we shall use the broader term institution.

Count Nigra, referring to Article 1, calls attention to the inconvenience of using the word States sometimes, and again the word Power. He proposes that we agree upon a uniform terminology; the word "State seems most suitable.

Chevalier Descamps expresses a contrary view.

Concurring with Sir JULIAN PAUNCEFOTE, Mr. Martens expresses the opinion that we might divide Article 1 into two parts:

1 and 1 bis. The first concerning organization, the second concerning jurisdiction.

The second paragraph would be begun with the words: "This tribunal should be competent," and each of the two paragraphs forming a separate article would appear as follows in the draft:

ARTICLE 1

With the object of facilitating an immediate recourse to arbitration for international differences which might not have been settled by diplomacy, the signatory Powers undertake to organize in the manner hereinafter mentioned a permanent tribunal of arbitration, accessible at all times, and which shall be governed by the code of arbitration inserted in this Convention, unless otherwise stipulated by the parties in dispute.2

ARTICLE 1 bis

This tribunal shall be competent for all arbitration cases whether obligatory or voluntary, unless the parties in dispute agree to institute a special tribunal.

These two articles are adopted subject to further revision as to form.

ARTICLE 2

The President reads Article 2 of Sir JULIAN PAUNCEFOTE's draft. A discussion takes place as to the form of paragraph 1 of this article.

1 Annex 2, B.

2 [Sir JULIAN PAUNCEFOTE'S project was drafted in English. This was translated into French and the French text was presented to the committee and Commission for consideration. When the final convention was drafted a considerable part of the original French text remained intact, and was adopted. When an English translation of the convention was made by both Great Britain and the United States, the original English text of Sir JULIAN PAUNCEFOTE seems to have been entirely disregarded, and the English translation of the final convention differs considerably from Sir JULIAN PAUNCEFOTE'S draft even where the French still remains the same as the French translation first presented to the committee. The English translation here used is made to conform to the translation officially adopted by the United States Government.]

[22] The committee, upon being consulted by the PRESIDENT, unanimously accepts the designation of The Hague as the seat of the permanent tribunal. Mr. Asser is authorized to declare that the Netherland Government is highly honored by this selection by the committee and by the unanimity of its members in agreeing thereto.

The words" for that purpose are stricken out.

Chevalier Descamps is asked to investigate and obtain a final list of the powers and duties of the bureau.

Article 2 is therefore adopted for the time being in the following form:

ARTICLE 2

A permanent central bureau shall be established at The Hague where the archives of the tribunal shall be preserved, and its official business shall be transacted. A permanent secretary, an archivist and a suitable staff shall be appointed who shall reside on the spot.

The bureau will be the channel for communications relative to the meetings of the tribunal at the request of the contesting parties.1

ARTICLE 3

Mr. Holls proposes to insert the following amendment:

When possible these persons shall be nominated by the majority of the members of the highest court then existing in each of the adhering States, and, in any case, they shall be selected by reason of their ability to decide, according to the spirit of the law, all questions over which they may have jurisdiction.

In support of this amendment Mr. HOLLS says that especially in American. Republics public opinion will not permit a selection of judges to be accompanied by a suspicion of political influence. Each of these republics possesses a supreme court which would seem best qualified to guide the President in the choice of members of the future arbitration tribunal. The judges of the highest court are in a situation to know and to estimate the worth of judges and of members of courts of their country, and they can have no other interest than that of choosing the most competent and the most trustworthy representatives. It would be the same in nearly, if not all, of the continental states. The purpose of the amendment is not to take away from the sovereign or from the head of the executive branch of the Government the power of nomination, but to gain the support of public opinion which would have greater confidence in the proposed tribunal if it were understood that the highest court of each country would participate in the designation of its members.

Mr. HOLLS declares that his instructions direct him to ask for a vote on this question.

In view of the opposition to the proposition of Mr. HOLLS manifested by all the other members of the committee, it is decided that the report shall mention the spirit of impartiality which should govern the choice and nomination of the judges.

After an exchange of views by Messers. BOURGEOIS, Sir JULIAN PAUNCEFOTE, Count NIGRA, BARON D'ESTOURNELLES and DESCAMPS, the committee thinks 1 See minutes following.

the word "lawyer" (jurisconsulte) is too narrow in the ordinary acceptance of the term.

Chevalier Descamps proposes that two or more Powers might agree upon the designation of two members in common as is provided in the draft of the Interparliamentary Conference.

The President reads the first paragraph of Article 3, as it was adopted at the first reading, the text of which follows below.

As for the second paragraph, Chevalier Descamps proposes an addition limiting the duration of the term of a member of the tribunal to six years, unless it is renewed. It is well, he says, to avoid life appointments. The committee agrees with this view, and, subject to certain modifications which Mr. DESCAMPS wishes to make in the phraseology, adopts provisionally the following complete text of Article 3:

Within the three months following the ratification of the present act, each signatory Power shall select two persons of known competency in international law, of the highest moral reputation, and disposed to accept

the duties of arbitrator.

The persons thus selected shall be inscribed as members of the tribunal in a list which shall be notified to all the signatory Powers by the central bureau.

Two or more Powers may agree on the selection in common of two members. The same person can be selected by different Powers.

The members of the tribunal are appointed for a period of six years; their appointment can be renewed.

In case of the death or retirement of a member of the tribunal, the same rules shall be followed for new appointments.1

[23] It is understood that the report of the present session shall remain strictly confidential until some future decision to the contrary.

The PRESIDENT places upon the order of the business for the next meeting Article 4 et seq. of the PAUNCEFOTE draft. That meeting will take place Monday, June 12, at 2:30 o'clock, Hall of the Truce.

The meeting adjourns.

1 See the minutes of the following meeting.

SEVENTH MEETING

JUNE 12, 1899 1

Mr. Léon Bourgeois presiding.

The minutes of the last meeting are read and approved. At the suggestion of his Excellency Count Nigra the committee desires to express its thanks to Baron D'ESTOURNELLES DE CONSTANT for the preparation of these minutes.

Mr. Holls declares in the name of the delegation of the United States of America that although that delegation participates in the committee in working out a plan for the permanent tribunal upon the basis of the proposal of Sir JULIAN PAUNCEFOTE, the American delegation does not intend of course to give up its preference for its own plan. It therefore reserves the right to present its plan, if it seems proper, either to the Third Commission or to a plenary session of the Conference, as an amendment to the report of the committee.

This declaration by Mr. HOLLS is noted upon the records of the meeting.

Examination upon Its First Reading of the Plan for the "Permanent Tribunal of Arbitration" by His Excellency Sir Julian Pauncefote

(Continued)2

Chevalier Descamps, who was commissioned to submit to the committee a new version of Article 2 of the plan of Sir JULIAN PAUNCEFOTE, reads the following text which is adopted:

ARTICLE 2

A central bureau is established at The Hague, through the efforts and under the supreme supervision of the Government of the Netherlands. This bureau is placed under the direction of a resident secretary general. It serves as registry for the arbitration tribunal. It is the channel for the communications relative to the meetings of the tribunal. It has custody of the archives, and conducts all the administrative business.

Upon the suggestion of Mr. Holls, it is understood that certain points in Article 2 are reserved for discussion later in connection with Article 6. Article 3 is read and adopted in the following form:

1 Hall of the Truce. Present: His Excellency Mr. STAAL, president of the Conference; their Excellencies Count NIGRA, Sir JULIAN PAUNCEFOTE, honorary presidents of the Third Commission; Chevalier DESCAMPS, president and reporter; Messrs. ASSER, Baron D'ESTOURNELLES DE CONSTANT, HOLLS, LAMMASCH, MARTENS, ODIER, Doctor ZORN, members of the committee of examination.

2 Annex 2, B.

ARTICLE 3

Within the three months following the ratification of the present act, each signatory Power shall select two persons of known competency in international law, of the highest moral reputation, and disposed to accept the duties of arbitrator. The persons thus selected shall be inscribed as members of the tribunal, in a list which shall be notified to all the signatory Powers by the central bureau.

Two or more States may agree on the selection in common of two members. The same person can be selected by different States. The mem

bers of the tribunal are appointed for a period of six years. Their appointment can be renewed.

[24] In case of the death or retirement of a member of the tribunal his place will be filled according to the same rules.

The President reads Article 4.

ARTICLE 4

As indicated by Chevalier DESCAMPS, Article 4 will be followed by Article 4 bis concerning the fixing of the meeting place of the tribunal.

The committee passes to the discussion of Article 4.

Mr. Asser asks leave to present a question to Sir JULIAN PAUNCEFOTE in order to learn how the third arbitrator will be designated.

Mr. ASSER fears that if Sir JULIAN PAUNCEFOTE's text is adopted, a party might easily avoid arbitration, even obligatory arbitration. Article 4 in fact furnishes him with the means; with the aid of this article could not one party indefinitely hold up the formation of the tribunal and consequently stop everything?

His Excellency Sir Julian Pauncefote replies that the new tribunal will be governed either by the parties themselves, where there is a compromis, or, in the absence of a compromis, by the code of procedure which will be added to the act.

His Excellency Count Nigra reads as an example Article 3 of the Treaty of permanent arbitration concluded between Italy and the Argentine Republic.1

This article meets exactly the objection raised by Mr. ASSER.

Mr. Léon Bourgeois recognizes, as does Mr. ASSER, that there is a defect in Article 4, and he reserves the right to return to the question.

Chevalier Descamps proposes a draft beginning with these words: "The litigant parties choose one or more arbitrators from this list." This draft no doubt is better fitted to the formation of a more complete organization than that contemplated, that is, to the constitution of a court, but Chevalier DESCAMPS believes nevertheless that it may be suggested to the committee.

Mr. Asser proposes as an alternative, in case an agreement regarding the choice of the third arbitrator could not be reached in any other manner, to resort to the drawing of lots.

Mr. Holls declares that it is not permissible in any case to impose upon one of the parties a third arbitrator which it would not desire to have.

Mr. Lammasch is of the opinion that the following might be agreed upon; if the States cannot agree in the choice of a third arbitrator, the choice will be left to the heads of the neutral States, that is, the King of the Belgians, the Grand Duke of Luxemburg, and the President of the Swiss Confederation.

Mr. Holls believes that the United States would not accept this exclusively European arrangement.

1 Treaty of July 23, 1898.