THE HAGUE, JULY 31, 1899.

COMMISSION OF THE UNITED STATES OF AMERICA TO THE INTERNATIONAL CONFERENCE AT THE HAGUE

Gentlemen: The undersigned members of the Third Commission of the Conference, to which was referred the matter of Arbitration and Mediation, have the honor of submitting the following report regarding the work of that Committee:

The Committee on Arbitration was appointed at the second session of the Conference, held May 20, 1899; and on Tuesday, May 23, the Committee met for the first time under the chairmanship of M. Leon Bourgeois of France. It then discussed merely routine business and adjourned until Friday, May 25. At this meeting it was decided to appoint a sub-committee called the Comite d'Examen, to consist of eight members, for the purpose of drafting a plan for International Arbitration and Mediation. The membership of the Comite d'Examen was proposed by the so-called Bureau of the Full Committee, consisting of the President, Honorary Presidents, and the Vice-President, as follows: M. Chevalier Descamps of Belgium, M. Asser of the Netherlands, M. de Martens of Russia, Professor Born of Germany, Professor Lammasch of Austria, M. Odier of Switzerland, Baron d'Estournelles de Constant of France, and Mr. Holls of the United States of America. The Honorary Presidents of the Committee, Sir Julian Pauncefote of England, Count Nigra of Italy, also took part in the work of the Comite d'Examen, as well as the President of the Conference, Baron de Staal of Russia. The Comite d'Examen held eighteen working sessions, all of its members being present at every session, with two exceptions caused by the absence of M. de Martens at the Venezuelan Arbitration in Paris.

On July 7, 1899, the Comite d'Examen presented to the full Committee the project for the peaceable settlement of international disputes, which, after discussion in the full Committee and in the Conference, was, on the 25th of July, unanimously adopted. A copy of this convention is annexed to this report. It consists of sixty-one articles, of which the first contains a general declaration regarding the maintenance of peace. Articles 2 to 8 inclusive relate to good offices and mediation; Articles 9 to 14, to international commissions of inquiry; Articles 15 to 20, o arbitral justice in general; Articles 30 to 57, to the procedure before the said court; and Articles 58 to 61, to the ratification of the convention and the like. All of these articles and the considerations which led to their adoption have been carefully discussed, on behalf of the Committee, by its reporter, M. Descamps, whose report is annexed hereto.

At the opening of the first meeting of the Third Committee of the Conference the Russians proposed a carefully-worked-out scheme:

1. For Good Offices and Mediation.

2. For Arbitrations ad hoc, to which was annexed a code for arbitral procedure.

3. For International Inquiries.

Sir Julian Pauncefote having been given the floor as one of the Vice-Presidents of the Conference, at once suggested a vote upon the principle of a Permanent Tribunal for International Arbitrations.

The Russians, thereupon, instantly gave notice that they also had a plan for a permanent Court which would be submitted in due course. It was thought best to discuss the principle of a permanent court only in connection with a careful discussion of definite plans, and it was therefore then resolved to send all plans bearing on this subject to the Comite d'Examen, together with the Russian proposals for Good Offices and Mediation.

At the meeting of the Committee, held Wednesday, May 31, the American project for an international tribunal of arbitration was presented, through the President of the Conference, M. de Staal. At about the same time, or just before, the English and the Russian plans for a permanent tribunal were also submitted. In the Comite d'Examen the plan proposed by Sir Julian Pauncefote was taken, by the consent of the Russians and Americans, as the basis of the Committee's work. This plan, however, has been greatly modified and enlarged, by provisions from both the American and the Russian plans, and also by suggestions made in Committee. The plan adopted by the Conference, therefore, while founded on the British proposals so far as the form of the Permanent Court is concerned, is really the work of the Comite d'Examen.

Compared with the original American project, it differs from it essentially in the following particulars. The fundamental idea of the American plan was a court which should not only be permanent but continuous in its functions, consisting of not less than nine judges, from whose number special benches might be chosen by the litigants; provision was also expressly made for the possibility of a session of the entire tribunal at one time. The latter idea was absolutely unacceptable to most of the Continental States. One objection raised to it was that there had not yet been sufficient experience in arbitrations to warrant a continuously sitting tribunal, so that if one were provided it would probably have nothing to do during the greater portion of the year, and thus become an object of criticism, if not of ridicule. Another objection found expression in the fear that such a tribunal would assume a dignity and importance for which the nations were not yet prepared. The expense involved in the payment of salaries to judges whose time would be taken, was also a consideration of no little importance, and the payment of permanent salaries was looked upon as being likely to emphasize the undesirable spectacle of an international court with perhaps little to do. The plan of Sir Julian Pauncefote happily avoided these difficulties, while it yet provided a permanent court not altogether unlike the Supreme Court of the State of New York, which consists of a comparatively large number of judges who never sit as a body but who are constantly exercising judicial functions, either alone or in separate tribunals made up from among their number. This organization appears in the perfected plan adopted by the Conference.

The American plan further proposed that the tribunal for which it provided should itself appoint its secretary or clerk and supervise the administration of its own bureau or record office. When the idea of a continuously sitting tribunal was abandoned, another method of administration of the bureau or record office was made necessary. Accordingly, the proposal which has been adopted provides that as soon as nine of the Powers who have acceded to this convention have ratified it, the representatives of the signatory powers accredited to the Government of the Netherlands will meet under the presidency of the Minister of Foreign Affairs of the Netherlands and organize themselves as a permanent Council of Administration, whose first duty it will be to create a permanent Bureau of Arbitration. The Council of Administration will appoint a secretary-general, secure quarters for the court and such assistants as may be necessary, in the shape of archivists and other officials who will sit in permanence at The Hague, and who will constitute the working staff and headquarters of the international system of arbitration. The Hague was selected as the seat of the permanent tribunal, by common consent, no proposition or vote favoring any other place having been received.

The American plan provided for one judge from each adhering country. The British proposal suggested two, and on the motion of the German delegate this number was increased to not more than four. The German delegation stated that their reason for proposing a larger number was that the Great Powers, at least, ought, in their opinion, to nominate as members of the tribunal men of eminence, not only in law, but also perhaps a diplomat and perhaps a military or naval expert. The Powers are not restricted to their own citizens in the choice of judges, and two or more Powers may unite in naming the same person. The judges to be named are to hold office for six years, and during the exercise of their functions and when outside of their own country they are to enjoy diplomatic privileges and immunities.

In place of the provision of the American proposal that the tribunal itself should fix its own rules of procedure, the Committee adopted a code of procedure proposed by the Russian delegation, with slight amendments. This code is almost identical with the rules of procedure adopted for the British and Venezuela Court of Arbitration, now in session at Paris. The authors of these rules were, it is understood, M. de Martens, President of the Court, Mr. Justice Brewer of the United States, and Lord Justice Collins of Great Britain.

The provision contained in the American plan that the cases, counter cases, depositions, arguments, and opinions of the court should, after the delivery of the judgment, be at the disposition of any one willing to pay the cost of transcription, was, by common consent, left as an administrative detail for the consideration of the Council of Administration.

The American proposal that every case submitted to the tribunal must be accompanied by a stipulation signed by both parties, to agree in good faith to abide by the decision, which was also a feature of the Russian proposals, was unanimously adopted; as was also the further American proposal that in each particular case the bench of judges should, by preference, be selected from the list of members of the tribunal. The Comite d'Examen was unwilling to make a categorical rule, as suggested in the American plan, that when the tribunal consisted of only three members none of them should be a native, subject, or citizen of either of the litigating States, but, on the other hand, the American objector to tribunals consisting of only one representative of each litigating State and one umpire was embodied in the provision that, except in case of an agreement to the contrary, the tribunal should, in all cases, consist of five members, two being nominated by each State, the four to choose the fifth. This enables the parties to have one representative each on the bench, while the majority of the tribunal may, nevertheless, consist of entirely impartial judges, who may not necessarily agree on all points with either side.

The American proposal regarding the expenses of the tribunal, that the judges should be paid only when on duty, was in effect adopted. The American proposal was the only one which contained provision for a second hearing for the correction of manifest errors. This provision was inserted in the code of procedure in a permissive form, after much opposition.

The American proposal that the Convention should be in force upon the ratification of nine States was adopted, but the restriction as to the character of these States, contained in the American plan, was omitted as unnecessary. It is substantially certain that among the first adhering States there will be eight European or American Powers, of whom at least four have been signatory Powers of the Treaty of Paris of 1856. It should be observed here that this description was made a part of the American Plan, only in order to make it clear that in the opinion of the United States Government the confirmation of a certain number of the Great Powers was essential to success.

The one distinctive feature of the American plan which was rejected on principle was that providing for the cooperation of the highest courts of each country in the selection of members of the Court of Arbitration. This idea proved absolutely unacceptable to the Continental Powers for various reasons, which have been stated to the department in our despatch Number 10. There is no highest court for the entire Empire of Austria-Hungary, and the relations between the different parts of the Empire are not calculated to make joint action by the two highest courts practicable or desirable. This is also true of Sweden and Norway. In Russia the highest court consists of a Senate of one hundred members, whose cooperation in the matter of appointment would contradict all local traditions. Besides this, the organization of the courts of nearly all Continental countries is based upon the traditions of the Roman Law, and those traditions always have excluded the idea of any action on the part of a judicial tribunal, with reference to the selection of a man or men for any particular purpose, even if the latter were judicial in its nature. Furthermore, in several large European States, notably Germany, the rules governing the practice of the law are such as to prevent the members of the highest court from having any knowledge of the ability or reputation of many of the most noted lawyers or judges, since no one is allowed to practice before the highest court unless he is a resident of the city of its location, and a member of its particular bar, and the rules providing for appeals are very narrow in their limitations. Under these circumstances, the members of those courts are not, like our Justices of the Supreme Court of the United States, or the members of the Privy Council of Great Britain, the best possible advisers with reference to the selection of creditable legal representatives upon the great tribunal, and it was stated that in many cases they were about the last authority to whom the appointing Power would be likely to turn with success for such advice and cooperation. Under these circumstances, the adoption of this feature of our plan was hopeless from the first; but, out of courteous regard for the United States, the Comite d'Examen directed the reporter to mention the importance of a complete disregard of political considerations in the choice of members of the court.

It will be seen that nothing in the proposed plan of organization of the permanent tribunal is absolutely contrary to the fundamental ideas set forth in the American proposal, and the code of procedure contains nothing contrary to the principles of equity pleading in English or American courts. In view of the fact that a large majority of the members of the arbitration Court must necessarily be Europeans trained in the principles of the Roman Law, it has been deemed important from the first to secure all possible guarantees against practice or procedure which would put nations having the Common Law as the basis of their jurisprudence at a disadvantage. It is believed that this end has been successfully accomplished.

Attention is called to the fact that the entire plan for the tribunal and its use is voluntary, so far as sovereign States are concerned. The only seeming exceptions to this rule are contained in Article 1, which provides that the Signatory Powers agree to employ their efforts for securing the pacific regulation of international differences; and Article 27, which says that the Signatory Powers consider it to be a duty, in the case where an acute conflict threatens to break out between two or more of them, to remind those latter that the permanent court is open to them. The obligation thus imposed is not legal or diplomatic in its nature. These articles merely express a general moral duty for the performance of which each State is accountable only to itself. In order, however, to make assurance doubly sure and to leave no doubt whatever of the meaning of the Convention, as affecting the United States of America, the Commission made the following declaration in the full session of the Conference, held July 25:

The Delegation of the United States of America, in signing the Convention regulating the peaceful adjustment of international differences, as proposed by the International Peace Conference, make the following declaration

Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions or policy or internal administration of any foreign State; nor shall anything contained in the said Convention be construed to imply a relinquishment by the United States of America of its traditional attitude toward purely American questions.

Under the reserve of this declaration the United States delegates signed the Arbitration Convention itself.

Article 8 of the Convention, providing for a special form of Mediation, was proposed individually by Mr. Holls of the United States Commission. It is fully explained in the report of M. Descamps and in the minutes of the meeting of the Committee at which it was unanimously adopted. Being purely voluntary in its character, it is at least certain that it conflicts with no American interest, while, on the contrary, it is hoped that in particular crises, when the other means provided by the Convention of keeping or restoring peace have failed, it may prove to have real and practical value. It is certain that, by the Continental States of Europe, it has been exceedingly well received.

The Convention for the peaceful adjustment of international differences, if ratified by the Senate, will require no special enabling legislation on the part of Congress, beyond the annual appropriation of a sum sufficient to pay the share of the United States of the expenses of the Arbitration Bureau at The Hague. It is provided that these expenses shall be borne by the Signatory Powers in the same proportion as is now prescribed by the World's Postal Convention, so that the share, even of a great Power, will be very small.

All of which is most respectfully submitted.