FOURTEENTH MEETING JULY 4, 1899 1 Mr. Léon Bourgeois presiding. Chevalier Descamps submits to the committee slight modifications to Articles 1, 2, and 6 of the draft of Convention. In Article 2 especially, upon motion of Sir JULIAN PAUNCEFOTE, and as has already been decided at the last meeting, the original text will be restored: "as far as circumstances allow," instead of "unless exceptional circumstances are opposed thereto." [56] The minutes of the last meeting are read and approved. Examination, upon its Second Reading, of Article 10 The order of business calls for the further discussion of Article 10 relating to the enumeration of cases of obligatory arbitration. Dr. Zorn proposes the suppression of Articles 9 and 10. The German Government is not in a position to accept compulsory arbitration. It admits that all existing conventions in which arbitration is provided shall of course continue in force, for example, the universal postal conventions, the conventions relative to railway transportations, the mutual conventions, etc. The principle of compulsory arbitration shall be maintained in all cases when already adopted by special conventions. But Germany can go no further and believes she has already done much by accepting the list of arbitrators and the Permanent Court. Dr. ZORN hopes that unanimity which has so happily prevailed heretofore in the decisions of the committee shall not come to an end and that the great concessions previously made by him will be taken into account. He therefore suggests that the adopted wording be such as to afford equal preservation to the future and the existing conventions. Count Nigra again declares that whatever happens, the Italian Government proposes to write into its conventions every time that it is possible the principle of obligatory arbitration. A general discussion takes place regarding the form to be given to the reservations and motion of Dr. ZORN. 1 Hall of the Truce. Present: His Excellency Mr. STAAL, president of the Conference; Jonkheer VAN KARNEBEEK, vice 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, ZORN, members of the committee of examination. 2 Annex 10. 3 See fourth and fifth meetings. Mr. Martens upon consideration of the observations of Dr. ZORN submits to the committee a new draft of Articles 9, 10 and 11, the import of which is as follows: ARTICLE 9 Each State remains the sole judge of whether this or that case should be submitted to arbitration, except the cases enumerated in Article 10, and in regard to those the high contracting Parties recognize arbitration and bind themselves to practice it, either by virtue of a special convention or by virtue of the present act, as the best means of settling disputed cases peacefully. ARTICLE 10 Arbitration is recognized by the contracting Parties as the best means of settling disputed cases relating to . . . (followed by the four cases in which the German Government has bound itself by special conventions to resort to arbitration. (The words "obligatory arbitration" are stricken out.) (Thus everything in Article 10 is canceled except these four cases.) ARTICLE 11 In cases of disputes not provided for in Article 10, arbitration is recognized as very desirable and recommended in the following cases: (Here follows an enumeration similar to that contained in the former Article 10.) Dr. Zorn is unable to agree to this proposal which determines in fact cases where arbitration is obligatory. When a permanent court shall be established and in operation, the opportune time for enumerating cases of arbitration which will be obligatory for all will come after individual experiences. But to hasten this evolution too greatly would be to compromise the very principle of arbitration, toward which we are all sympathetic. He therefore maintains his proposal to strike out Articles 9 and 10. Chevalier Descamps states that the system proposed by Mr. MARTENS distinguishes between cases of obligatory arbitration, cases where arbitration is recommended and . . . others. But how shall we decide upon the enumeration? Chevalier DESCAMPS for his part finds it too restricted and would propose, for example, that mention be made of commercial treaties. He thinks that we can submit to the committee a more general provision which would replace Articles 9 and 10: Independently of general and special 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, general or special, with a view to extending obligatory arbitration to all cases which they may consider it possible to submit to it.1 Jonkheer van Karnebeek objects to the text of Chevalier DESCAMPS as too general. Chevalier Descamps replies that he only points out a compromise formula under the force of necessity. Mr. Martens will submit to the decision of the committee, but he proposed his draft with a view to save something. In reality, he is bound by the facts 1 See end of the minutes. themselves: on one hand, Germany does not wish to accept the principle of obligatory arbitration in a general act; on the other hand, this Power has already concluded special treaties providing for this obligatory arbitration. His drait had for its purpose to facilitate the adhesion of Germany by not asking that country to make any new sacrifice. [57] Nevertheless, in order to meet the demands of Dr. ZORN he will go so far as to accept the omission of Article 10. Jonkheer van Karnebeek expresses regret that the principle of obligatory arbitration for certain kinds of litigation is not to be written into the convention. His Excellency Sir Julian Pauncefote shares this regret but he believes that we must make concessions in view of the categorical instructions of the German delegate, and in order not to lose the valuable assistance of unanimity which has thus far existed. The President asks permission to make a few remarks; the majority of the members of the committee had voted in favor of the enumeration of cases of obligatory arbitration. He thinks it necessary that the expression of this view should not be passed over in silence. The opinion of each one of us upon the fundamental principle should first be recalled and clearly expressed by a vote; because public opinion will regret that the obligatory idea, restricted to certain cases, covered by conventions already existing, was not written into the General Act. Every one must be thoroughly informed that we have not changed our viewpoint, but that we have given up the attempt to make this view prevail because we desire to attain the higher end of unanimity. In order to show clearly this attitude, the PRESIDENT asks that a vote be taken upon the principle of Article 10, subject to its immediate omission in order to obtain general agreement. His Excellency Count Nigra regrets that he cannot agree with Mr. BOURGEOIS. Our votes have already been given upon the first reading. Why repeat them? By emphasizing our disagreement we would throw into too great relief the changes of opinion which have taken place. Finally, the cases of obligatory arbitration contained in Article 10 are in his view so worthless that they are not worth talking about, and as far as he is concerned he would have rejected the enumeration as insufficient. In order to obtain so poor a result it is not necessary to imperil the auspicious unanimity which constitutes our strength before the Third Commission. Dr. Zorn thanks his Excellency Count NIGRA. He too is strongly in favor of unanimity, but if it is impossible to preserve it he must withdraw from it in view of his instructions. Mr. Asser says that there are two distinct things: personal vote which we have already shown, and compromise vote which we are about to consider. The full Commission has the right to know the stages through which we have passed. That done, as Mr. BOURGEOIS has pointed out, we shall join in a given solution for obtaining unanimity. That cannot embarrass the German Government; it is on the contrary an act of courtesy to it. The President thinks it would be useful to set forth clearly the conclusions to which this discussion has led. Met by the inflexible instructions of Dr. ZORN on the one hand, and by the necessity of unanimity on the other, he is ready to make all possible concessions, but it is not his duty to alter facts. Now these facts are as follows: 1. A considerable majority has already declared itself in favor of the enumeration contained in Article 10; 2. To-day we are considering the second reading of Article 10, and all the members of the committee have the right to show their opinions. If these opinions are not changed it is natural that they should indicate it. The PRESIDENT asks permission to declare that, so far as he is concerned, if the French delegation has allied itself with the opinion of the new majority it is solely as a matter of compromise and not because it has changed its opinion. This declaration in no way implies that one side or the other should count upon laying their divergence of opinion before the Commission the best guaranty against this peril is the spirit in which we are working; the perfect harmony which animates us, the existence of which has been proved in so many ways, leaves no fear upon this point. Chevalier Descamps says doubtless all the members of the committee must consider their instructions, but they must also thank Dr. ZORN for the concessions which he has made to them. His Excellency Sir Julian Pauncefote says that the German Government is perhaps not the only one opposed to Article 10. Are not Austria and Italy of the same opinion? His Excellency Count Nigra replies that he would wish, as does Mr. BOURGEOIS, that the enumeration of Article 10 were more extensive, and for that reason he will not vote for it. Mr. Holls regrets that he does not agree with the PRESIDENT. He does not think it would be useful to vote again upon Article 10. We examined it upon the first reading, that was sufficient to establish opinions. The American Government has approved his vote expressly, that is, it finds that the contents of this article are in reality of so little importance that its [58] retention cannot be allowed to weigh the balance against the inconvenience of a dissent between the great Powers represented in the committee. Under these conditions, we should not hesitate to sacrifice Article 10 to obtain unanimity. The President accepts this view-point, provided, however, that the opinions of each one be stated in the minutes. His Excellency Count Nigra agrees with this solution. Jonkheer van Karnebeek insists upon the necessity of not giving a false impression. Why enter into the details of an enumeration? The real question is the principle of obligation. Germany cannot accept it; it is sufficient that her refusal be stated in the minutes and in the report, and that it be added that in the committee there was unanimous opinion in favor of Article 10 at the time of the first reading (except in the case of Dr. ZORN, who reserved his vote). Then it would not be necessary to redraft the article: it would be sufficient to state the concession. Dr. Zorn recognizes that it is the right of each member of the committee to vote upon the second reading and to give the reasons for his vote. So far as he is concerned it will be satisfactory if the reporter explains that many members of the committee, although in favor of the principle of obligatory arbitration, have abandoned their idea in order to reach an agreement. Mr. Odier declares that if the article were submitted to a vote upon the second reading, he would ask for the omission of Article 11 and certain modifications of Chapter II. With these reservations he is favorable to the principle and would vote for the retention of the article. Sir Julian Pauncefote would have also voted for the retention of Article 10 subject to the reservation of certain modifications which he has already asked for upon the question of pecuniary claims. Mr. Martens: The idea which made us decide to insert cases of obligatory arbitration in our plan is that it is necessary to assist the practice of arbitration, and in order to do that, to provide for certain possibilities, even of little importance, wherein Powers would agree to resort to arbitration necessarily. But since it is a question of preserving unanimity, Mr. MARTENS consents to the withdrawal of Articles 10 and 11 purely and simply. Mr. Lammasch agrees with the views expressed by his Excellency Count NIGRA and Mr. HOLLS. As to whether it is necessary to vote upon Article 10 upon a second reading or simply to mention the declarations upon this subject in the report and minutes, he considers the latter process preferable. The latter will be sufficient in fact to protect our responsibility which has, however, already been cleared by our vote upon the first reading. The President summarizes the discussion by saying that the vote which the committee is about to express will be taken under the conditions set forth above. Consequently, he puts to vote the compromise text of Chevalier DESCAMPS, a text accepted by Dr. ZORN, and beginning with these words: "Independently of general or private treaties, etc." 1 This text, put to vote, is adopted replacing former Articles 8 to 12, and will become Article 5. Only six articles will remain in Chapter IV, “International arbitration." Article 6 will be the former Article 13: "With a view to developing the practice of arbitration, etc." The committee before closing its work has only to decide upon the title to be given to the entire set of provisions worked out by it for the purpose of facilitating the peaceful settlement of international disputes. After having discussed the following titles "International code of peace (Mr. DESCAMPS), "Pacific settlement of international disputes" (Mr. Asser), the committee adopts the following expression: "Convention for the pacific settlement of international disputes." Jonkheer van Karnebeek returns to the clause regarding accession and insists upon the necessity of settling this question. Mr. Martens explains the formula which was suggested for the General Act; according to this formula the protocol will remain open until January 1 of the coming year. All adhesions will be notified to the Royal Government of the Netherlands which will give notice thereof to the interested parties after having made a note thereof. This duty is what the Federal Government now performs in the case of certain conventions. It is preferable, Mr. MARTENS adds, to leave the question open so that the drafting committee may adopt a general formula applicable to all the conventions which result from the labors of the Conference. Adopted. The President does not want to let the committee close its work without expressing his thanks and congratulations for the activity and spirit of conciliation which have made his task so much easier, and assured its final success. On the motion of his Excellency Count Nigra, the committee expresses [59] its thanks to the PRESIDENT for the services which he has rendered in accepting the duty of directing their labors. Unanimous votes of thanks 1 See the text inserted above, p. 768. |