66

The question of the publicity of discussions does not seem to have given rise to any debate. In 1907 as in 1899 it was provided that they shall be public only in case it shall be so decided by the Tribunal, with the assent of the parties" (art. 66). Of course it is expected that publicity will be the rule. To the declaration of article 51 of the convention of 1899 that "the deliberations of the tribunal shall take place with closed doors," article 78 of the convention of 1907 adds, "and remain secret." Every decision is to be by a majority vote. The provision (in article 51) that "the refusal of a member to vote shall be noted in the official minutes was suppressed in article 78.

The requirement of article 52 that "the arbitral award must be drawn up in writing and signed by each member of the tribunal," as also the permission granted to those voting in the minority to state, in unity, the grounds of their dissent, were also suppressed in article 79; but the provision that "the arbitral award shall be made by a majority of votes, and accompanied by a statement of the reasons upon which it is based," was retained.

Articles 53 and 54 of the convention of 1899 remain unchanged in that of 1907. Articles 80 and 81 prescribe that the award which is to settle the dispute finally and without appeal shall be read in public in the presence of the agents and counsel of the litigants. Article 82 is altogether new. It declares that "Every difference, which may arise between the parties concerning the interpretation and execution of the award, in so far as not forbidden by special agreement, shall be submitted to the tribunal that made it."

The Russian delegation asked for the total suppression of article 55 of the convention of 1899, which lays down the conditions under which the parties may reserve the right to demand a rehearing of the case. These are the "discovery of new facts, of such a character as to exercise a decisive influence upon the judgment, and which at the time of the judgment were unknown to the tribunal itself and to the parties demanding the rehearing." This condition must be established by a decision of the tribunal itself.

In 1907, as in 1899, M. de Martens argued strongly against the retention of article 55 on the ground that an arbitral award should

terminate, finally and forever, the conflict between litigants. He maintained that a rehearing must necessarily provoke new discussions, again inflame public passion, and once more menace the peace of the world.

On the other hand it was urged that the right to revision is essential to liberty; that the sole end of arbitration is not the termination of the dispute; and that "nothing is settled until it is settled. right." 33 The result of the discussion was an overwhelming vote in favor of the retention of article 55 as article 83 of the convention of 1907.

Article 84 reproduces with slight variations article 56 of the convention of 1899. Its first paragraph provides that "the arbitral award is merely obligatory for the litigant parties." Article 85 (article 57 of the convention of 1899) prescribes that "each party shall bear its own expenses and an equal part of the expenses of the tribunal."

Chapter IV on "Summary Procedure of Arbitration" is wholly new and consists of five articles (86-90). These were based upon a project presented by the French delegation which was designed to aid in the solution of disputes of a special or technical character by furnishing the parties with tribunals and a mode of procedure more simple, rapid, and less expensive than that elaborated in the previous chapter. They are as follows:

ART. 86. With a view of facilitating the operation of arbitral justice in differences that permit of a summary procedure, the contracting powers agree upon the following rules which shall be observed in the absence of different stipulations, and under reserve, should the case arise, of the application of the provisions of Chapter III which are not contrary to them.

ART. 87. Each of the parties at variance shall name an arbitrator. The two arbitrators thus designated shall choose an umpire. If they are unable to come to an agreement upon this subject, each shall present two candidates taken from the general list of members of the Permanent Court (none of them being nationals of any of the states selecting them) beyond the members indicated by each of the parties themselves. It shall be determined by lot which of the candidates thus presented shall be the umpire.

33 For the arguments pro and con, see the Report by Baron Guillaume, p. 42; Le Courrier de la Conférence for August 25, 1907; and Holls, op. cit., pp. 286-303.

The umpire shall preside over the tribunal, which shall render its decisions by a majority of votes.

ART. 88. In default of previous agreement, the tribunal, as soon as it is constituted, shall fix the period within which the two parties must submit to it their respective memoires.

ART. 89. Each party shall be represented before the tribunal by an agent who shall serve as intermediary between the tribunal and the government that has selected him.

ART. 90. The procedure shall be exclusively in writing. Each party shall have, however, the right to demand the presence of witnesses and experts. The tribunal, on its side, shall have the power of requiring oral explanations from the agents of the two parties, as also from the experts and the witnesses whose presence it considers useful.

re

Seven articles (91 to 97, inclusive) of "Final Provisions " place the four articles (58 to 61) of "General Provisions" of the convention of 1899. They include the customary provisions relating to the date, place, and mode of ratification; the means by which nonsignatory or nonadhering powers may become parties to the convention; and the conditions under which withdrawals may take place.

The convention for the peaceful adjustment of international differences, accompanied by a voluminous report drawn up by Baron Guillaume of Belgium, was submitted to the conference at its ninth plenary session on October 17, 1907, and adopted unanimously. There were, however, more or less important reserves on the part of Brazil, Greece, Japan, Switzerland, Turkey, and the United States.3

34

The reserve of the United States related to the Monroe Doctrine and was made with reference to article 48:

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 entering upon, interfering with, or entangling itself in the political questions or internal administration of any foreign State. It is equally understood that nothing contained in the said convention shall be so construed as to imply the relinquishment, by the United States of America, of its traditional attitude toward purely American questions.

On the whole, the convention of 1907 must be pronounced somewhat disappointing even to many advocates of peace and arbitration 34 Le Courrier de la Conférence for October 17, 1907.

who do not belong to the "militant" school of pacificists. Aside from its failure to agree upon a plan for obligatory arbitration or to adopt the American scheme for a real permanent high court of abritral justice or supreme court of the nations, it is to be regretted that the Second Hague Peace Conference did not see its way clear to recommend that third powers suggest recourse to commissions of inquiry in all cases of serious controversy regarding facts, that they did not make the use of such commissions obligatory, at least in certain cases, and give them the right to fix responsibility and apportion blame as well as to elucidate facts. It is also a matter for regret that the functions of the Administrative Council and International Bureau at The Hague were not enlarged to enable them to exert a more powerful influence in behalf of peace and the enforcement of law; and that the employment of members of the Hague Tribunal as agents or counsel was not absolutely prohibited.

On the other hand, some excellent results were obtained. Commissions of inquiry were provided with a form of organization and rules of procedure which, although purely optional, seem sufficiently detailed and adequate for their purpose. The rules of procedure suggested for the use of the Hague Tribunal were considerably enlarged and strengthened, and the functions of that body somewhat increased. Special tribunals with a more summary mode of procedure were devised for the settlement of disputes of a special or technical character. Most important of all, governments desiring arbitration of a given dispute are authorized by article 48 to appeal directly to the International Bureau at The Hague, which must immediately communicate this fact to the other power.

Surely these are important steps in advance and, taken collectively, constitute no small service to the cause of peace and arbitration.

AMOS. S. HERSHEY.

CONVENTION RELATIVE TO THE OPENING OF

HOSTILITIES1

ARTICLE I.

The contracting powers agree that hostilities between them should not begin without a previous unequivocal notice, which shall be either in the form of a declaration of war with reasons therefor, or of an ultimatum with a conditional declaration of war.

ARTICLE II.

A state of war shall be made known without delay to the neutral powers, and shall not be effective with regard to them until they receive a notice, which may be given even by telegraph. However, the neutral powers cannot use the lack of a notice as a pretext if it should be proven beyond doubt that they really knew of the state of war.

The convention as drawn up is substantially the same as the proposition submitted by the French delegation and that proposition follows in the main the text adopted by the Institute de Droit International at its meeting at Ghent (September, 1906), when the whole subject was carefully discussed.2

From the earliest times and in all stages of civilization we find the custom of declaring war before commencing hostilities. Certain primitive tribes which were in a constant state of feud may be said to have lived in a continual state of war, but when a more stable condition was reached where peaceable conditions were maintained the sentiment was also developed that hostilities ought not to be commenced without previous warning. In fact, without such a sentiment peace between two contiguous and jealous communities could not have lasted any length of time. The explanation which satisfied the minds of the chiefs may have been that any breach of peace in which the adversary was taken by surprise would be a sacrilegious violation of an oath; for peace was based on oaths sworn to the

1 For the full text of the Convention with translation, see Supplement. 2 Annuairé De l'Institute de Droit International, session de Gand 1906.