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MR. HAY TO HON. ANDREW D. WHITE, HON. SETH LOW, HON. STANFORD NEWEL, CAPT. ALFRED T. MAHAN, U. S. N., CAPT. WILLIAM CROZIER, U. S. A., DELEGATES ON THE PART OF THE PRESIDENT OF THE UNITED STATES.
DEPARTMENT OF STATE,
WASHINGTON, April 18, 1899.
Gentlemen: You have been appointed by the President to constitute a commission to represent him at an international conference called by His Imperial Majesty the Emperor of Russia to meet at The Hague, at a time to be indicated by the Government of the Netherlands, for the purpose of discussing the most efficacious means of assuring to all peoples the " benefits of a real and durable peace."
Upon your arrival at The Hague you will effect an organization of your commission, whose records will be kept by your secretary, Hon. Frederick W. Holls. All reports and communications will be made through this Department, according to its customary forms, for preservation in the archives.
The program of topics suggested by the Russian minister of foreign affairs for discussion at the Conference in his circular of December 30, 1898, is as follows:
1. An understanding stipulating the nonaugmentation, for a term to be agreed upon, of the present effective armed land and sea forces, as well as the war budgets pertaining to them; preliminary study of the ways in which even a reduction of the aforesaid effectives and budgets could be realized in the future.
2. Interdiction of the employment in armies and fleets of new firearms of every description and of new explosives, as well as powder more powerful than the kinds used at present, both for guns and cannons.
3. Limitation of the use in field fighting of explosives of a formidable power, such as now in use, and prohibition of the discharge of any kind of projectiles or explosives from balloons or by similar means.
4. Prohibition of the use in naval battles of submarine or diving torpedo boats, or of other engines of destruction of the same nature; agreement not to construct the future warships armed with rams.
5. Adaptation to naval war of the stipulation of the Geneva Convention of 1864, on the base of the additional articles of 1868.
6. Neutralization, for the same reason, of boats or launches employed in the rescue of the shipwrecked during or after naval battles.
7. Revision of the declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels, and not yet ratified.
8. Acceptance, in principle, of the use of good offices, mediation, and voluntary arbitration, in eases where they are available, with the purpose of preventing armed conflicts between nations; understanding in relation to their mode of application and establishment of a uniform practice in employing them.
It is understood that all questions concerning the political relations of States and the order of things established by treaties, as in general all the questions which shall not be included directly in the programme adopted by the cabinets, should be absolutely excluded from the deliberations of the Conference.
The first article, relating to the nonaugmentation and future reduction of effective land and sea forces, is, at present, so inapplicable to the United States that it is deemed advisable for the delegates to leave the initiative upon this subject to the representatives of those Powers to which it may properly belong. In comparison with the effective forces, both military and naval, of other nations, those of the United States, are at present so far below the normal quota that the question of limitation could not be profitably discussed.
The second, third, and fourth articles, relating to the non-employment of firearms, explosives, and other destructive agents, the restricted use of existing instruments of destruction, and the prohibition of certain contrivances employed in naval warfare, seem lacking in practicability, and the discussion of these propositions would probably prove provocative of divergence rather than unanimity of views. It is doubtful if wars are to be diminished by rendering them less destructive, for it is the plain lesson of history that the periods of peace have been longer protracted as the cost and destructiveness of war have increased. The expediency of restraining the inventive genius of our people in the direction of devising means of defense is by no means clear, and, considering the temptations to which men and nations may be exposed in a time of conflict, it is doubtful if an international agreement to this end would prove effective. The dissent of a single powerful nation might render it altogether nugatory. The delegates are, therefore, enjoined not to give the weight of their influence to the promotion of projects the realization of which is so uncertain.
The fifth, sixth, and seventh articles, aiming in the interest of humanity to succor those who by the chance of battle have been rendered helpless, thus losing the character of effective combatants, or to alleviate their sufferings, or to insure the safety of those whose mission is purely one of peace and beneficence, may well awake the cordial interest of the delegates, and any practicable propositions based upon them should receive their earnest support.
The eighth article, which proposes the wider extension of good offices, mediation, and arbitration, seems likely to open the most fruitful field for discussion and future action. " The prevention of armed conflicts by-pacific means," to use the words of Count Mouravieff's circular of December 30, is a purpose well worthy of a great international convention, and its realization in an age of general enlightenment should not be impossible. The duty of sovereign States to promote international justice by all wise and effective means is only secondary to the fundamental necessity of preserving their own existence. Next in importance to their independence is the great fact of their interdependence. Nothing can secure for human government and for the authority of law which it represents so deep a respect and so firm a loyalty as the spectacle of sovereign and independent States, whose duty it is to prescribe the rules of justice and impose penalties upon the lawless, bowing with reverence before the august supremacy of those principles of right which give to law its eternal foundation.
The proposed Conference promises to offer an opportunity thus far unequaled in the history of the world for initiating a series of negotiations that may lead to important practical results. The long-continued and widespread interest among the people of the United States in the establishment of an international court, as evidenced in the historical resume attached to these instructions as Annex A, gives assurance that the proposal of a definite plan of procedure by this Government for the accomplishment of this end would express the desires and aspirations of this nation. The delegates are, therefore, enjoined to propose, at an opportune moment, the plan for an international tribunal, hereunto attached as Annex B. and to use their influence in the Conference in the most effective manner possible to procure the adoption of its substance or of resolutions directed to the same purpose. It is believed that the disposition and aims of the United States in relation to the other sovereign Powers could not be expressed more truly or opportunely than by an effort of the delegates of this Government to concentrate the attention of the world upon a definite plan for the promotion of international justice.
Since the Conference has its chief reason of existence in the heavy burdens and cruel waste of war, which nowhere affect innocent private persons more severely or unjustly than in the damage done to peaceable trade and commerce, especially at sea, the question of exempting private property from destruction or capture on the high seas would seem to be a timely one for consideration.
As the United States has for many years advocated the exemption of all private property not contraband of war from hostile treatment, you are authorized to propose to the Conference the principle of extending to strictly private property at sea, the immunity from destruction or capture by belligerent Powers which such property already enjoys on land as worthy of being incorporated in the permanent law of civilized nations.
I am, etc.,
From time to time in the history of the United States, propositions have been made for the establishment of a system of peaceable adjustment of differences arising between nations. As early as February, 1832, the senate of Massachusetts adopted, by a vote of 19 to 5, a resolution expressing the opinion that "some mode should be established for the amicable and final adjustment of all international disputes instead of resorting to war."
A similar resolution was unanimously passed by the house of representatives of the same State in 1837, and by the senate by a vote of 35 to 5.
A little prior to 1840 there was much popular agitation regarding the convocation of a congress of nations for the purpose of establishing the international tribunal. This idea was commended by resolutions adopted by the legislature of Massachusetts in 1844, and by the legislature of Vermont in 1852.
In February, 1851, Mr. Foote, from the Committee on Foreign Relations, reported to the Senate of the United States a resolution that
in the judgment of this body it would be proper and desirable for the Government of the United States whenever practicable to secure in its treaties with other nations a provision for referring to the decision of umpires all future misunderstandings that can notate satisfactorily adjusted by amicable negotiation in the first instance, before a resort to hostilities shall be had.
Two years later Senator Underwood, from the same committee reported a resolution of advice to the President suggesting a stipulation in all treaties hereafter entered into with other nations referring the adjustment of any misunderstanding or controversy to the decision of disinterested and impartial arbitrators to be mutually chosen.
May 31, 1872, Mr. Sumner introduced into the Senate a resolution in which, after reviewing the historical development of municipal law and the gradual suppression of private war, and citing the progressive action of the Congress of Paris with regard to neutrals, he proposed the establishment of a tribunal to be clothed with such authority as to make it a " complete substitute for war," declaring a refusal to abide by its judgment hostile to civilization, to the end that "war may cease to be regarded as a proper form of trial between nations."
In 1874 a resolution favoring general arbitration was passed by the House of Representatives.
April 1, 1883, a confidential inquiry was addressed to Mr. Frelinghuysen, Secretary of State, by Colonel Frey, then Swiss minister to the United States, regarding the possibility of concluding a general treaty of arbitration between the two countries. Mr. Frelinghuysen, citing the general policy of this country in past years, expressed his disposition to consider the proposition with favor. September 5, 1883, Colonel Frey submitted a draft of a treaty, the reception of which was acknowledged by Mr. Frelinghuysen on the 26th of the same month. This draft, adopted by the Swiss Federal Council July 24, 1883, presented a short plan of arbitration. These negotiations were referred to in the President's Annual Message for 1883, but were not concluded.
In 1888, a communication having been made to the President and Congress of the United States by two hundred and thirty-five members of the British Parliament, urging the conclusion of a treaty of arbitration between the United States and Great Britain, and reinforced by petitions and memorials from multitudes of individuals and associations from Maine to California, great enthusiasm was exhibited in its reception by eminent citizens of New York. As a result of this movement on June 13, 1888, Mr. Sherman, from the Committee on Foreign Relations, reported to the Senate a joint Resolution requesting the President
to invite, from time to time, as fit occasions may arise, negotiations with any government with which the United States has or may have diplomatic relations, to the end that the differences or disputes arising between the two governments which can not be adjusted by diplomatic agency may be referred to arbitration, and be peaceably adjusted by such means.
November 29, 1881, Mr. Blaine, Secretary of State, invited the Governments of the American Nations to participate in a Congress to be held in the city of Washington, November 24, 1882, " for the purpose of considering and discussing the methods of preventing war between the nations of America." For special reasons the enterprise was temporarily abandoned, but was afterwards revived and enlarged in Congress, and an act was passed authorizing the calling of the International American Conference, which assembled in Washington in the autumn of 1889. On April 18, 1890, referring to this plan of arbitration, Mr. Blaine said:
If, in this closing hour, the Conference had but one deed to celebrate, we should dare call the world's attention to the deliberate, confident, solemn dedication of two great continents to peace, and to the prosperity which has peace for its foundation. We hold up this new Magna Charta, which abolishes war and substitutes arbitration between the American Republics, as the first and great fruit of the " International American Conference."
The Senate of the United States on February 14,1890, and the House of Representatives on April 3, 1890, adopted a concurrent resolution in the language reported by Mr. Sherman to the Senate in June, 1888.
July 8, 1895, the French Chamber of Deputies unanimously resolved:
The Chamber invites the Government to negotiate as soon as possible a permanent treaty of arbitration between the French Republic and the Republic of the United States of America.
July 16, 1893, the British House of Commons adopted the following resolution:
Resolved, That this House has learnt with satisfaction that both Houses of the United States Congress have, by resolution, requested the President to invite from time to time, as fit occasions may arise, negotiations with any government with which the United States have or may have diplomatic relations, to the end that any differences or disputes arising between the two governments which can not be adjusted by diplomatic agency may be referred to arbitration and peaceably adjusted by such means; and that this House, cordially sympathizing with the purpose in view, expresses the hope that Her Majesty's Government will lend their ready cooperation to the Government of the United States upon the basis of the foregoing resolution.
December 4, 1893, President Cleveland referred to the foregoing resolution of the British House of Commons as follows:
It affords me signal pleasure to lay this parliamentary resolution before the Congress and to express my sincere gratification that the sentiment of two great and kindred nations is thus authoritatively manifested in favor of the rational and peaceable settlement of international quarrels by honorable resort to arbitration.
These resolutions led to the exchange of communications regarding the conclusion of a permanent treaty of arbitration, suspended from the spring of 1895 to March 5, 1898, when negotiations were resumed which resulted in the signature of a treaty January 11, 1897, between the United States and Great Britain.
In his inaugural address, March 4, 1897, President McKinley said:
Arbitration is the true method of settlement of international as well AS local differences.. It was recognized as the best means of adjustment of differences between employers and employees by the Forty-ninth Congress in 1886, and its application was extended to our diplomatic relations by the unanimous concurrence of the Senate and House of the Fifty-first Congress in 1890. The latter resolution was accepted as the basis of negotiations with us by the British House of Commons in 1893, and upon our invitation a treaty of arbitration between the United States and Great Britain was signed at Washington and transmitted to the Senate for ratification in January last.
Since this treaty is clearly the result of our own initiative, since it has been recognized as the leading feature of our foreign policy throughout our entire national history-the adjustment of difficulties by judicial methods rather than forge of arms-and since it presents to the world the glorious example of reason and peace, not passion and war, controlling the relation between two of the greatest nations of the world, an example certain to be followed by others, I respectfully urge the early action of the Senate thereon, not merely as a matter of policy, but as a duty to mankind. The importance and moral influence of the ratification of such a treaty can hardly be overestimated in the cause of advancing civilization. It may well engage the best thought of the statesmen and people of every country, and I can not but consider it fortunate that it was reserved to the United States to have the leadership in so grand a work.
The Senate of the United States declined to concur in the ratification of the Treaty of Arbitration with Great Britain, but for reasons which might not affect a general treaty directed toward a similar end.
The publication by this Government of the exhaustive " History and Digest of the International Arbitrations to which the United States has been a Party," by the Hon. John Bassett Moore, late Assistant Secretary of State, a work extending through six volumes, marks a new epoch in the history of arbitration. It places beyond controversy the applicability of judicial methods to a large variety of international disagreements which have been successfully adjudicated by individual arbitrators or temporary boards of arbitration chosen by the litigants for each case. It also furnishes an exceedingly valuable body of rules of organization and procedure for the guidance of future tribunals of a similar nature. But, perhaps, its highest significance is the demonstration of the superiority of a permanent tribunal over merely special and temporary boards of arbitration, with respect to economy of time and money as well as uniformity of method and procedure.
A history of the various plans for the realization of international justice shows the gradual evolution of clearer and less objectionable conceptions upon this subject. Those of Bluntschli, Lorimer, David Dudley Field, and Leone Levi have been long before the public, each containing useful suggestions, but impracticable as a whole. Certain rules for the regulation of the procedure of international tribunals of arbitration were discussed by the Institute of International Law at its sessions at Geneva in 1874, and at The Hague in 1875, and provisional rules were finally approved. Another set of rules was proposed by a select committee of lawyers at the Universal Peace Congress, held in Chicago in 1893. Resolutions of a somewhat elaborate nature were adopted by the Inter-parliamentary Conference, composed of British and French members of Parliament, at Brussels in 1895. _In April, 1896, the Bar Association of the State of New York at a special meeting held at Albany adopted a plan for the establishment of a permanent international tribunal. The almost continuous movement of thought in this direction since 1832 has been interrupted only by the late Spanish-American war.
A careful review of all the plans for an international tribunal that have thus far been proposed makes it evident that they have failed from two causes: (1) Too great elaboration and complication, involving too many debatable questions; and (2) the absence of an opportune occasion for proposing them to an authoritative international body.
The plan that is to prove successful, if a sufficient number of sovereign States be disposed to adopt any plan whatsoever for an international tribunal, must combine an adequate grasp of the conditions with an extreme simplicity, leaving much to the cooperation of others and the development of the future.
The introduction of a brief resolution at an opportune moment in the proposed Peace Conference would at least place the United States on record as the friend and promoter of peace. The resolution hereto appended is intended to embody in the briefest and simplest manner the most useful suggestions of all the plans proposed.
Resolved, That in order to aid in the prevention of armed conflicts by pacific means, the representatives of the Sovereign Powers assembled together in this Conference be, and hereby are, requested to propose to their respective Governments a series of negotiations for the adoption of a general treaty having for its object the following plan, with such modifications as may be essential to secure the adhesion of at least nine Sovereign Powers.
1. The Tribunal shall be composed of judges chosen on account of their personal integrity and learning in international law by a majority of the members of the highest court now existing in each of the adhering States, one from each sovereign State participating in the treaty, and shall hold office until their successors are appointed by the same body.
2. The Tribunal shall meet for organization at a time and place to be agreed upon by the several Governments, but not later than six months after the general treaty shall be ratified by nine Powers, and shall organize itself by the appointment of a permanent clerk and such other officers as may be found necessary, but without conferring any distinction upon its own members. The Tribunal shall be empowered to fix its place of sessions and to change the same from time to time as the interest of justice or the convenience of the litigants may seem to require, and fix its own rules of procedure.
3. The contracting nations will mutually agree to submit to the International Tribunal all questions of disagreement between them, excepting such as may relate to or involve their political independence or territorial integrity. Questions of disagreement, with the aforesaid exceptions, arising between an adherent State and a non-adhering State, or between two sovereign States not adherent to the treaty, may, with the consent of both parties in dispute, be submitted to the International Tribunal for adjudication, upon the condition expressed in Article 6.
4. The Tribunal shall be of a permanent character and shall be always open for the filing of cases and counter cases, either by the contracting nations or by others that may choose to submit them, and all cases and counter cases, with the testimony and arguments by which they are to be supported or answered, are to be in writing. All cases, counter cases, evidence, arguments, and opinions expressing judgment are to be accessible, after a decision is rendered, to all who desire to pay the necessary charges for transcription.
5. A bench of judges for each particular case shall consist of not less then three nor more than seven, as may be deemed expedient, appointed by the unanimous consent of the Tribunal, and not to include a member who is either a native, subject, or citizen of the State whose interests are in litigation in that case.
6. The general expenses of the Tribunal are to be divided equally between the adherent Powers, but those arising from each particular case shall be provided for as may be directed by the Tribunal. The presentation of a case wherein one or both of the parties may be a non-adherent State shall be admitted only upon condition of a mutual agreement that the State against which judgment may be found shall pay, in addition to the judgment, a sum to be fixed by the Tribunal for the expenses of the adjudication.
7. Every litigant before the International Tribunal shall have the right to make an appeal for reexamination of a case within three months after notification of the decision, upon presentation of evidence that the judgment contains a substantial error of fact or law.
8. This treaty shall become operative when nine sovereign States, whereof at least six shall have taken part in the Conference of The Hague, shall have ratified its provisions.
The Hague Peace Conferences of 1899 and 1907
A Series of Lectures Delivered before the Johns Hopkins University in the Year 1908
By James Brown Scott
Technical delegate of the United States to the Second Peace Conference at the Hague
In two Volumes
Volume II - Documents
Baltimore, MD : The Johns Hopkins Press, 1909.