Nobel Lecture*, May 18, 1908
The Work at The Hague in 1899 and in 1907
As you can imagine, I have been looking forward to this opportunity of expressing publicly to the Nobel Committee my deep gratitude for the signal honor they have conferred in awarding me the Peace Prize; I look upon it as the greatest honor of my life. I should like also to keep a promise made to my distinguished colleague Mr. Frédéric Passy1 when I saw him on the eve of my departure, by conveying to you his regrets that age has prohibited him from discharging the same duty.
My debt of gratitude to you all has been further increased by the warmth and friendliness of your welcome, a welcome which has gladdened my heart even more than it has flattered my vanity. I cannot help adding that I ought also to thank Norway for the moving experience afforded me by the spectacle of her national festival. It was not by chance that I was present; guided by friendly advice, I had indeed chosen the date for my visit here. However, in spite of all I had been told, what I had the good fortune to see yesterday far surpassed all my expectations.
In the morning under a dazzling sun all the gay young people in their varied and picturesque costumes, stepping so briskly and waving their flags so joyously, made me think of the springtime of life on its march into the future. In the afternoon the scene took on a more serious aspect, and the sky was less radiant; it all seemed more like autumn. I was deeply moved to hear the national anthem sung by everybody with almost religious fervor, and to see the banners of so many societies and associations dipped in universal salute to the highest representative of the country.
So it was that I saw the two faces of Norway’s noble image – the one gay, the other serious, but both equally engaging. My eyes and my heart were fully satisfied.
You have shown me every kindness and no doubt you will now think me only too quick to take advantage of your patience. Forgive me and understand that I am repaying a debt of gratitude.
It is not only on my own behalf that I thank you; I thank you also on behalf of all the jurists who have devoted their efforts to the study of international law, and to whose services in the interest of better international relations you have seen fit to testify so appreciatively. These services had already been collectively honored by the award given to the Institute of International Law2, an award which excited universal interest. From this pacifist army of internationalists you have now singled out one soldier who, for many years, has fought for the concept of law, both in teaching and in practice.
For too long the diplomats and the theorists of international law ignored each other and disdained each other; as a result of this mutual scorn, now fortunately ended, both theoretical studies and diplomatic agreements have suffered. International relations have become so complex that, if they are to be regulated effectively in view of the many interests at stake, the co-operation of various jurisdictions. is indispensable. This is especially true now that the scope of conventional law has been extended to include almost all aspects of political, economic, juridical, and administrative affairs. As we have found in recent conferences, we must now call upon experts in all categories. By doing so we create a climate for the successful collaboration that is so necessary.
Since you have chosen to honor a jurist, it is as a jurist that I address myself to you now, and I beg forgiveness in advance for the aridity of an account which seeks only to be clear and accurate. Unluckily for you, the qualifications of the professor do not necessarily correspond to those of the orator who, as we saw at the Peace Conference, has the knack of making even the most involved problems sound alluring.
I shall not delve into the historical background of the Peace Conferences, the political aspects and organizational details of which have an importance all their own. In this very place, the first Norwegian delegate to the Conference of 1907, my distinguished colleague Mr. Hagerup3, made this the subject of a talk on an occasion that I shall never forget. I have no desire to repeat what he has already told you, and told you with an authority that I cannot even pretend to possess. I should like, however, to make some observations of a general nature, in fact to present the philosophy of the Peace Conferences. I shall not enter into any controversy. I merely speak as a man who has always been a keen observer of these events, now and again taking a modest part in them, and as one who has profited from the time that has elapsed to evaluate, at a distance from the heat of discussion, the results achieved through strenuous effort.
What, in my opinion, characterizes what I call the work at The Hague is the progressive development of the concept of law in the relations between peoples, in short the juridical organization of international life.
Here I call to mind what has been done at The Hague in the last fifteen years in the fields of private international law and public international law: the Conferences of 1893, 1894, 1900, and 1904 dealt with the former, those of 1899 and 1907 with the latter.
There are, unquestionably, great differences among the matters treated, yet they share a common characteristic. Such conferences seek to substitute law for the arbitrary; they are concerned with relations between individuals as well as with those between states. The difficulties involved are not the same in both cases, but they are equally great. To resolve them, each country must give up stubborn adherence to its own ideas and concede whatever it can without actually injuring its own essential interests. Let me pay tribute here to a Norwegian magistrate, Mr. Beichmann4, with whom I have on many occasions had both the pleasure and the profit of working in the field of private law.
Curious, at first glance, is the fact that codification of public international law was begun before that of private international law. The interests of the individual undoubtedly suffered in the absence of rulings in cases of conflicting civil law, but complaints were not lively enough to attract the attention of the various governments. It was the initiative of The Netherlands government, prompted by an eminent jurist, the Minister of State Mr. Asser5, that finally led the nations of Europe to discuss the conflicts of civil law; the action this inspired was blessed with favorable results, and we can say that in Europe the codification of private international law is well on its way.
The codification of public international law can be traced back to the Congress held in Paris in 1856 following the Crimean War. The diplomatic act of April 16, 1856, known as the Declaration of Paris, contains four rules relating to maritime warfare which are universally accepted today. They brought about great progress, particularly in reconciling on two important points two widely varying systems, that of France and that of Great Britain. This rapprochement, at first forced by the necessity of waging a common war and later maintained after the peace, was established under conditions that complied with both justice and the general interest. Each country gave up practices in its system which seemed, if not unjust, then particularly harsh; the result was entirely favorable to the neutrals, who comprised the largest group concerned: the flag covered the cargo without confiscating it. It is in such a way that all conciliations should be worked out.
However, it is not the Declaration of Paris itself which I want to examine here; rather, it is the procedure that was followed to achieve its extraordinary result, that is to say, the adoption by the whole world of the rules it laid down.
The powers represented at the Congress of Paris – namely, the five big European powers, Austria, France, Great Britain, Prussia, and Russia, together with Sardinia and Turkey who took part in their capacity as belligerents – agreed, after deliberation, on terms which were ipso facto binding on themselves and which they later asked the other powers to accept. To be sure, an agreement reached among governments of such widely divergent political, economic, and geographical backgrounds provides certain assurances, for it presents every opportunity for the variety of interests involved to find some sort of satisfaction; so the subsequent adherence by other governments to the terms agreed upon can be easily understood. Nevertheless, the nonparticipating powers could have contributed some pertinent observations both in their own and in the general interest. The adherence procedure, however, put them in the position of having to choose between outright acceptance or outright rejection of rules adopted in their absence.
The same procedure was followed in 1864 for the Geneva Convention concerning military wounded on the battlefield and in 1868 for the Declaration of St. Petersburg which involved banning the use of explosive bullets, except that in these cases, the procedure was not confined to the great powers alone.
A real step forward was taken by the Brussels Conference which was convened6, on Russia’s initiative, to attempt the regulation of the laws and practices of war on land. No longer were the great and secondary powers the only ones represented at the discussions; the smaller nations were also invited to take part. Obviously these small nations have special interests to protect in that they do not have the same military organization as the large nations and are more likely to be invaded than to invade. However, it should be noted that, in spite of this extension of participation in discussion, the movement remained exclusively European. The United States of America was not represented, despite the initiative it had taken in 1863 through the promulgation of its famous instructions to armies in the field7.
Once again it was Russia who took the lead in making yet another change by persuading twenty-six nations to send delegates to the first Peace Conference in 1899; thus the movement spread beyond Europe to include nations in America and Asia: the United States, Mexico, China, Japan, Persia, and Siam. The halfway point had been reached. The decision as to which nations were to be invited was arrived at somewhat arbitrarily by the Russian government, which compiled its list on the basis of whether or not the respective powers had ambassadors at the Court of St. Petersburg. The last stage was completed in 1907 when forty-six nations were invited and forty-four actually took part. This time almost the entire civilized world was represented at the conference which some daring journalist, not surprisingly, dubbed the Parliament of Mankind – certainly an incorrect title in many respects, but a striking one just the same.
Apart from congresses such as the postal or telegraphic conferences which are primarily concerned with administrative matters, I think one can say that no diplomatic gathering purporting to have matters of political interest as the main items on its agenda had ever before been so well attended. Such a congress is clearly qualified to pass laws intended for universal application; all parties have an equal opportunity to voice their opinions and to defend their own interests, and it is with a full knowledge of the facts that they adopt any resolution. This general participation in discussion is unquestionably more in keeping with the independence and equality of states than was the previous procedure. But along with these theoretical and practical advantages come many difficulties which have to be surmounted, first during the discussions themselves and then in connection with the passing of the resolutions, as all who attended the Conference discovered. By pointing out these difficulties I do not mean to condemn the system, but merely to draw attention to their inescapable consequences and to the care which must be taken to mitigate them. The equality of nations, except in matters of material strength, is juridically incontrovertible, but this equality pushed to the last limits of literalness becomes absurd. To give an example which should offend no one, Great Britain and Luxembourg are two states equal before the law, yet would it not be ridiculous if the voice of Luxembourg carried as much weight on a maritime issue as that of Great Britain? The small nations have a most useful and honorable part to play in these conferences; they are most frequently the true representatives of justice, precisely because they do not have the strength to impose injustice. However, if they wish to see maintained the tradition of these conferences to which they are invited, they would do well to exercise a certain restraint and to avoid the fallacious belief that obstinacy, not to say obstructionism, is the best way of asserting their independence. Please forgive the great liberty I have taken in thus expressing myself; it is a liberty taken by a jurist influenced by a sincere love for justice and not by any political considerations. I am less concerned with criticizing the attitude of this or that delegation than with paying homage to that of a delegation which has correctly understood the role it should play. I shall return to this matter later.
Unanimity is basic to any diplomatic conference, for the goal of such a conference must be the alignment of equal but distinct wills; in a parliamentary assembly, on the other hand, it is the expression of a single will, that of the nation represented, which must be obtained. This necessity for unanimity is a constraining factor since it can lead to the exercise of the liberum veto, in short to a stalemate, but it is also an indispensable safeguard against hasty decisions and against coalitions of interests. It allows compromise in the sense that a resolution can represent the will of the conference as a whole, in spite of some disagreements. It is a matter of tact and prudence; such delicate problems are not resolved mathematically. The main point is that no nation should be forced into anything against its will.
One has only to think about it to appreciate the difficulties bound to arise in any attempt to draft a formula which will be acceptable to the representatives of so many nations differing in interests, customs, and institutions. Even when there is a solid basis for agreement, there are always innumerable nuances suggesting diversity in attitudes of mind, ways of thinking and of reasoning. People may even speak the same language, but they do not speak it identically nor give to words the same shades of meaning. It is necessary indeed to accept compromises and to agree to conciliatory schemes which the logical, critical mind and which the learned scholar at his desk would not tolerate. I hasten to plead extenuating circumstances on behalf of one who has often used the pen and who knows, better than anyone else, that the end result is not perfect. Had he been as uncompromising in the drafting of resolutions as he would be in the formulating of a purely scientific work, he would have achieved nothing.
In short, sometimes, instead of laying down a hard-and-fast rule, we must limit ourselves to a recommendation, indeed to a kind of prayer. The resolution is binding “insofar as is possible”, “insofar as circumstances permit”, etc. Then, you will say, it is no longer a legal obligation, but merely a moral duty. True, but it is no small matter that a moral duty be recognized by the majority of nations. By force of circumstance, it eventually becomes a part of custom and compels as much acknowledgment as if it had constituted a strict obligation in the first place. Assistance to enemy wounded was a charitable duty generally recognized even before the Geneva Convention of 1864 made it a legal responsibility. We must not move too fast or believe that, in our age of rapid communication, minds can be reshaped as quickly and easily as matter. There are some forms of resistance and even of hesitation that only time, allied with education, can overcome. Jurists and journalists can do a great deal to pave the way for the reform of nefarious practices. They can succeed – and there are examples of this in influencing a nation to give up barbaric measures which its government has been unwilling to renounce.
Finally, in considering the work of a conference, we are wrong to take into account only what has produced definite, clear-cut results, ignoring what has been done to prepare the way for future achievements. There can be no harvest without the seed. We may well heed the instructions given to the United States delegates before the second Peace Conference in the name of one whom I take pleasure in remembering here – President Roosevelt8: “You should always keep in mind the promotion of this continuous process through which the progressive development of international justice and peace may be carried on; and you should regard the work of the Second Conference, not merely with reference to the definite results to be reached in that Conference, but also with reference to the foundations which may be laid for further results in future conferences. It may well be that among the most valuable services rendered to civilization by this Second Conference will be found the progress made in matters upon which the delegates reach no definite agreement.”9 Here is practical wisdom that has been lacking in all too many of those who disparage the Peace Conferences.
I have no intention of commenting on or analyzing the various resolutions formulated at the Conference of 1907. The delegates drew up thirteen conventions proper and one declaration, not to mention the important voeux or recommendations and the general acknowledgments contained in the Final Act. I should like merely to single out certain essential facts that show the extent to which the concept of law was strengthened and developed.
Let us first of all consider the resolutions pertaining to war. To begin with, does it not seem paradoxical to be so occupied with war at a conference for peace? Indignation and mockery are easily evoked and given full rein; they are not the more justified for this reason. The name “Peace Conference” was chosen somewhat irrationally by a section of public opinion which, on the strength of the first Russian message10, expected the Conference to bring about partial, if not total, disarmament and, consequently, everlasting peace. Eventually the name passed into official usage. I must confess I regretted this fact wholeheartedly since I doubted very much that the public, having failed to obtain from the Conference what it had unreasonably expected, would then attach any importance or value to the actual useful results.
Is this to say that the term “Peace Conference” is entirely unjustified? I do not believe so. Anything that contributes to extending the domain of law in international relations contributes to peace. Since the possibility of future war cannot be ignored, it is a farsighted policy that takes into account the difficulties created by war in the relations between belligerents and neutrals; and it is a humanitarian policy that strives to reduce the evils of war in the relations between the belligerents themselves and to safeguard as far as possible the interests of noncombatants and of the sick and the wounded. Whatever may be said by those who scoff at the work undertaken in this field by the Peace Conferences, wars will not become rarer by becoming more barbarous.
For a long time discussion has centered on the question of whether a government on the verge of war has an obligation to warn its adversary before opening hostilities. This question has led to frequent recriminations between belligerents. The Conference agreed unanimously that “hostilities must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war”11. The future will show whether it is possible to go a step further, as certain delegations have asked, by requiring a specified time-lapse between the receipt of the warning and the start of hostilities.
The Convention dealing with the laws and customs of war on land is the Convention of 1899 carefully revised12.
Let me select a few points which indicate significant progress.
Article 23.h of the Statute forbids belligerents to “declare abolished, suspended, or inadmissible in a court of law, the rights and actions of the nationals of the hostile party”. This would seem to satisfy a theoretical rather than a practical necessity because, with our modern concept of war and its effect on civilians, it would be difficult to imagine a civilized country’s declaring void or suspended the rights of enemy subjects.
In accordance with a new provision added at the end of the same Article 23, “a belligerent is likewise forbidden to compel the nationals of the hostile party to take part in any operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war.” This provision results from the same concern that inspired the new Article 44: “A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent or about its means of defense.” This touches on the question of forced guides, one of the most painful raised by the practice of war. Is it, after all, logical to forbid a belligerent to conscript an inhabitant of enemy territory into its army, and at the same time permit it to force the same inhabitant to serve it as a guide, thereby compelling him to do his country even greater harm ? Is this not an outrage against the most honorable aspect of patriotism? Should we not, then, commend the majority of the Conference for refusing to be sidetracked by technical arguments and for persisting in comdemning the present practice? Undoubtedly, certain delegations had their reservations with regard to the provision. It is open to question whether their governments would dare, should the occasion arise, to resort to a practice censured by the vast majority of the civilized world. What happened in the case of the “dum-dum” bullets offers an argument worth considering13.
Article 52 now ends with the provision that requisitions in kind must be paid as soon as possible; this is a real advance toward achieving respect for private property.
Lastly, and most important of all, is the inclusion in the Convention of an article under whose terms any belligerent party violating the provisions of the Statute will be subject to penalties. In addition, the belligerent will be held responsible for all acts committed by members of its armed forces. The inclusion of this new clause resulted from the doubts held in certain quarters about the compulsory character of the Statute, since comparison of its provisions with those of the Brussels Conference seemed to indicate that neither possessed more than moral weight. All doubt has been removed now that the terms of the Statute are supported by the obligation to make amends for any injurious consequences which might result from their violation. Moreover, the belligerent’s responsibility for acts committed by members of its armed forces is clearly defined. Is this not a great step forward, and is it not calculated to make the belligerent more vigilant in observing the Statute?
The Convention concerning the rights and duties of neutral powers and persons in war on land14 implemented a recommendation of the Conference of 1899. It clarifies certain principles and, in doing so, gives guarantees to neutrals perpetually exposed to the demands of one or both of the belligerent parties. Again, this facilitates the maintenance of peace.
Naval warfare presents many difficulties on many points, since it involves the relations between the belligerents themselves and those between belligerents and neutrals. There is always some vagueness which the belligerents take advantage of to further their own interests. These interests are, or seem to be, very divergent, and the divergence unfortunately results primarily from geographical situation, which no one can do anything about. It would have been useless, therefore, to hope for general agreement on many of these matters. That negotiations became possible at all constituted an achievement in itself, since the great seafaring nations had for a long time automatically refused to be drawn into discussion on this subject.
A great effort was made on all sides. Understanding was reached on several points; the field of controversy was limited, to the advantage of all concerned; and a basis for future discussion and agreement was established. It now remains for each country to undertake a serious examination of its own real interests and to determine how far it can go in bringing about the accord that is so desirable.
In order to show just what has been attempted or achieved, I should have to delve into minute details and technicalities, but I shall confine myself to the broad outlines.
The question of laying automatic submarine contact mines15 had stirred public opinion ever since the last war because of the threat these mines posed to peaceable shipping even long after the end of hostilities. If no completely satisfactory answer has been given, it is because the technical questions involved have not as yet been satisfactorily answered; there is bound to be some groping in the dark. Rules offering certain guarantees concerning bombardment by naval forces have also been formulated16 – not without difficulty. Both of these delicate matters were handled by a subcommittee presided over by Mr. Hagerup.
The right to seize private property in the course of war at sea has long been a point for argument. Pursuing its traditional policy, the United States of America proposed the abolition of this right and succeeded in rallying the majority of nations to its point of view. However, since the remaining minority included the great seafaring nations, the proposition could have no immediate practical results. On the other hand, if the principle of abolition itself did not triumph, at least certain important restrictions were brought to bear on the exercise of the right of seizure17. For example, postal correspondence found on either enemy or neutral ships was declared inviolable – to the distinct advantage of both belligerent and neutral commercial relations. Coastal fishing boats and local shipping of light tonnage were exempted from seizure. The treatment of the crews of captured enemy merchant vessels was regulated advantageously. These results can well be appreciated by any country which, like Norway, is greatly concerned with fishing and shipping.
Norway, like all maritime nations intending to remain neutral, was particularly anxious to have a comprehensive and precise ruling covering the rights and duties of neutral powers during naval warfare, especially with regard to the governing of belligerent warships visiting neutral ports. A convention was drawn up, thanks partly to the efforts of the late Count Tornielli, Italy’s first delegate18. This Convention appears, on the whole, to provide a fair settlement of the matter. It is to be hoped that agreement can eventually be reached on the points which certain powers still have reservations about. This would mean real progress in the interests of peace, for it would reduce the danger of any extension of hostilities resulting from conflicts between belligerents and neutrals.
In connection with this train of thought, I would just like to mention the Convention for the adaptation of the principles of the Geneva Convention  to naval warfare19. Agreement was easily reached. The Convention of 1899 was carefully reviewed in the light of the amendments to the Geneva Convention which went into effect in 1906. The same spirit of goodwill dominates both Conventions, the one concerning the sick and wounded in land warfare and that dealing with them in naval warfare. Differences of application occur in some cases, but only because of the difference in milieu.
I come now to those points which have a direct bearing on the maintenance of good relations between nations and which naturally claim the special attention of all friends of peace.
How much did the second Peace Conference attempt, and to what extent did it succeed in contributing to this cause?
First of all, it had to consider the Convention for the pacific settlement of international disputes which had been drawn up in 1899 and signed by nearly all the nations of the civilized world20. I shall deal only with those aspects of the Convention that concern arbitration. For certain problems, arbitration had been recognized as the fairest and most efficient instrument for settling disputes not resolved through diplomatic channels. Its use remained optional, but it still constituted a piece of legal machinery easily set in motion – something not to be disdained. When two powers agree to settle a dispute legally by arbitration, it is preferable that they should not first have to discuss details of the organization of the tribunal or of procedure. such discussion can easily become a source of friction which, although completely dissociated from the dispute itself, makes settlement of the dispute that much more difficult. How much better it is to be able to use an instrument set up in advance when there was no particular dispute in view, and no objective except that of finding the best means to serve the general cause of justice!
To appreciate fully the benefits derived from the Convention of 1899, we should consider not only its material and tangible results, but also the imponderable influence which it has exerted on the chancelleries, an influence which has made itself felt in two important ways. In the first place, when a dispute does arise, the idea of settling it by arbitration is now readily accepted, whereas previously those who proposed such a solution were regarded by men of action as pure theorists, I can confirm this from personal experience. In the second place, there have already been numerous applications of Article 19 of the Convention, by the terms of which the signatory powers reserved the right to conclude new standing agreements of their own which would apply compulsory arbitration to all cases in which they deemed it appropriate. I am happy to say that it was the Franco-British Convention of October 14, 1903, which was the first to be signed under these terms and that approximately sixty such agreements have been signed up to April 6 of this year. One of the latest is, I believe, the Convention of April 4 between Norway and the United States.
So far only four arbitration cases21 have been adjudicated at The Hague itself in conformity with the procedure adopted in 1899. There have been others which were dealt with more simply. The important thing is that arbitration be used to avoid conflict; whether it is used here or there, whether through this or that procedure is of little consequence. Let me add, however, that we should not want too many such arbitrations. Undoubtedly; it is better to plead than to fight; but it is better still to come to a direct understanding without having to plead. It is the fear of arbitration and possible public censure by a tribunal, however, that prompts a government to be prudent enough to relinquish an unfounded claim.
This 1899 Convention was revised in 1907 and many improvements in its details were made. I mention only the introduction of a summary procedure for minor matters and of the carefully drawn up procedures adopted by the International Commissions of Inquiry whose effectiveness was demonstrated in a striking manner on the occasion of the Hull incident22; this in itself would have been enough to exonerate the 1899 Convention from the reproach of having done nothing useful.
I come now to what the 1907 Conference did about compulsory arbitration, a subject which it discussed thoroughly if not always happily.
It had been proposed at the 1899 Conference to introduce this measure with limited applications, but the proposal had to be withdrawn in the face of overwhelming opposition. In 1907 the proposal was advanced again, and again was dropped, with the result that the Convention itself was not amended on this point. Does this mean that we are still exactly where we were in 1899 and that no progress at all has been made in a matter which so deeply concerns all peace-loving people?
To say this would be to exaggerate unfairly. I shall try to clarify this point and to explain the positions adopted at the Peace Conference.
No attempt was made to present arbitration as a means of resolving all disputes, no matter what their nature, at least not in a general Convention. There is nothing to prevent two determined nations that may be able to foresee the possible nature of their future disputes, from going far beyond the scope of a Convention like the one I have just mentioned; indeed, many instances of this kind can be cited. However, some delegates believed that by taking precautions it was possible to introduce compulsory arbitration for certain types of disputes under terms extending to all nations; they were vigorously opposed. I am certain that the problem had never before been examined in such detail. By gathering together all the possible objections to it and thereby forcing everyone to face the problem in all its aspects, the adversaries of compulsory arbitration have, probably unwittingly, rendered an invaluable service to the very cause they so relentlessly attacked; for to face the problem is to take the first sure step toward its solution. I firmly believe that none of the objections is truly fundamental and that the principle must therefore triumph in the end. Jurists and diplomats will do well to devote some careful study to these lively, sometimes impassioned, but always courteous discussions of 1907. They will gain a clearer insight into the difficulties that must be overcome and so be better able to work out the proper solutions.
What has actually been the result of the discussions I have just described?
Thirty-two nations agreed to the drafting of a Convention instituting compulsory arbitration: first, for a range of general cases which would be subject to the traditional reservations covering vital interests and national honor; and second, for a number of specific cases which would not be subject to such. Some of those present indulged in lighthearted banter about a few of these cases, asking if anyone really supposed they could lead to war. In the first place, however, wars very frequently spring from petty incidents, and arbitration can be of value in dealing with these as well as with the more serious cases. We must become accustomed to making it function in relatively minor affairs before we come to more serious ones. In any event, some of the eventualities covered were not as trivial as they might seem, a case in point being the assessment of the sum of an indemnity once the onus of responsibility has been admitted. Experience has shown that arbitration in such a matter would prevent exaggerated claims. Be that as it may, the minority, invoking the rule of unanimity, opposed inclusion in the Final Act, of the agreement formulated along the lines just mentioned, and supported, as I have said, by thirty-two nations. There could clearly be no possibility of incorporating it in the same Convention that all the nations were prepared to sign. No one could be satisfied with this purely negative result; so the following declaration was inserted in the Final Act: “The Conference, actuated by the spirit of mutual agreement and concession characterizing its deliberations, has agreed upon the following declaration, which, while reserving to each of the powers represented full liberty of action as regards voting, enables them to affirm the principles which they regard as unanimously admitted: It [the Conference] is unanimous, first, in admitting the principle of compulsory arbitration and, secondly, in declaring that certain disputes, in particular those relating to the interpretation and application of the provisions of international agreements, may be submitted to compulsory arbitration without any restriction.”
Thus, no power now directly attacks compulsory arbitration; it only remains for certain nations to restudy their positions in order to decide in which cases they are prepared to allow it. The other thirty-two nations are prepared, as of now, to be bound by specific categories, and no further obstacle stands in the way of their signing an agreement to that effect. Can we say then that the situation is the same as it was in 1899? To do so would be to ignore the evidence. We can safely say that the future of compulsory arbitration is assured.
The Conference of 1907 succeeded moreover in introducing a certain form of compulsory arbitration in a case which is not without significance; I refer to the Convention concerning the limitation of the use of force for the recovery of contractual debts23. In principle, contractual debts claimed from the government of one country by the government of another as owed to its nationals may not be recovered by force. However, this stipulation would not apply if the debtor nation refused or ignored an offer of arbitration or if, in the event of acceptance of such an offer, it obstructed the implementing of a compromise or, after arbitration, failed to comply with the decision given. Here, surely, is a case of compulsory arbitration in that the creditor nation must propose arbitration at the very outset and that it depends only on the debtor nation to accept. Those nations possessing powerful means of coercion renounce their use to start with, in the arrangement described. This is no mean advantage for the weaker nations. Objection has been made that the procedure suffers from a lack of complete reciprocity because a strong nation against whom a weaker one makes a claim could either ignore it or refuse arbitration, knowing that the only possible recourse for the weaker state would be the use of force, an absurd expedient in view of the disproportion of strength. This cannot be denied, nor can the fact that only in a limited way did the Convention allow such compulsory arbitration. However, it would be wrong to suppose that it is always the weaker nations who call for such arbitration and the strong ones who refuse it. The reverse was the case in 1902 at the time of the claims by European powers against Venezuela24.
The United States proposed the setting up of a judicial arbitration court which would be truly permanent as opposed to the one instituted by the Convention of 1899 which is permanent in name only; the framework alone [of the latter] is permanent since the tribunal is essentially mobile, having to be convened for each individual case and then dissolved immediately after pronouncing its verdict. A great deal of work was done to define the jurisdiction of the court and the procedure to be followed in sessions. The proposal encountered an insurmountable obstacle when it came to the composition of the court. The sponsors of the plan believed that, to be a truly effective instrument, the new tribunal should not include too many judges, and a total of fifteen to seventeen appeared to be the absolute maximum. If we compare this total with the number of nations represented at the Conference, we can understand the difficulty. How could one provide for each nation’s sharing in the appointment of fifteen or seventeen judges? It is easy to foresee the various factions, whether they be of the great or of the lesser powers, colliding in opposition. All hope of reaching agreement in the Conference had to be abandoned and action restricted to the inclusion of the following recommendation25 in the Final Act: “The Conference calls the attention of the signatory powers to the advisability of adopting the annexed draft Convention for the creation of a judicial arbitration court, and of bringing it into force as soon as an agreement has been reached respecting the selection of the judges and the constitution of the court.” It is to be hoped that we will succeed in arriving at an understanding obviously requiring compromise and the setting aside of unreasonable demands. The proposed permanent court would be of valuable service, particularly in its setting up of a delegation of three members to settle quickly a large number of minor disputes. The fact that three great powers, none of them particularly noted for idealism – namely, Germany, England, and the United States – jointly put forward the proposal is significant.
I end my review of the work of The Hague with the Convention relating to the creation of an international prize court26. This is concerned largely with the rules of war; but the draft of the Convention was also referred to the First Commission entrusted with examining questions relative to international justice, since the matter involves the means of settling serious international disputes through litigation. I have kept this Convention for the last because it seems to me that it best demonstrates the general spirit of the second Peace Conference, the development of the concept of law, and the influence of the times.
For centuries it has been accepted that a-captured enemy merchantman or a seized neutral ship becomes a prize in fact only after confirmation by a judicial authority: all prizes must be adjudicated. The competent jurisdiction has been that of the captor who arranges the prize tribunals as he sees fit. It is hardly surprising that the decisions of these tribunals have often given rise to objections and sometimes even to actual conflict. Indeed, these tribunals exercise the laws set down by their own governments, laws which may well be arbitrary. Furthermore, since their own national interests are deeply involved, they are not inclined to find illegal the acts perpetrated in serious or even dangerous circumstances by officers of their own national navy. Surely there is no better way of working for peace than by attempting to obtain a greater measure of justice for those wronged in the course of maritime warfare, and thus to eliminate some serious causes of conflict. The smaller nations, whose voices can sometimes hardly be heard among those of the powerful belligerents, would derive real benefit from a change in such practice.
For a long time, publicists have been clamoring for reform. The Institute of International Law had drawn up a comprehensive proposal, but it was looked upon as belonging to the realm of pure theory, without a chance of realization. One would scarcely have thought that a group of great sea-faring nations, who have an interest in preserving their freedom of action if they are belligerents and who are in a position to make themselves heard if they are neutrals, would take the initiative in this matter. Nevertheless this is precisely what happened. From the very start of the Conference, Germany and Great Britain each advanced plans aimed at establishing an international court for dealing with prizes. They were, however, motivated by such divergent ideas that a conciliation was at first thought to be impossible. A compromise was nevertheless attained, and a comprehensive, carefully drafted proposal was submitted to the Conference in the name of four great powers, Germany, the United States, France, and Great Britain. With only a few amendments relating to points of detail, it was accepted by the main body of the Conference. The only opposition came from one non-European nation27.
I cannot even think of embarking on an analysis of a Convention which touches on so vast a number of technicalities and which in fact constitutes a code for the new institution. I shall confine myself to two points of primary importance.
I. Composition of the Court
The court consists of fifteen members supplied by forty-four nations. Comparison of the two figures gives an immediate indication of the difficulty of the problem. Here is a brief outline of the system adopted. Eight powers – Germany, Austria-Hungary, the United States, France, Great Britain, Italy, Japan, and Russia – all appeared to have a predominating interest by virtue of the size of their navies, the tonnage of their merchant shipping, and the importance of their maritime commerce; so they will select the regularly presiding judges. For the other powers, rotation determines a table appended to the Convention which lists, year by year, their respective judges and deputy judges. The system is inevitably arbitrary, both in itself and in its applications, and it is immediately open to criticism concerning its departure from the concept of the equality of all nations in law. But is it logical to wish to give equal control over the composition of the court to Germany, Montenegro, and Siam? Is it not the major powers who make the greatest sacrifice in agreeing to a revision of the decisions of their own prize tribunals? Lastly, granted that the nature of its composition is defective, does not the new jurisdiction at all events herald great progress, and does it not assure all nations, particularly the secondary powers, certain guarantees absent in the present state of affairs? Therein lies a decisive point not immediately grasped by the majority of the interested parties. I am happy to recall that the delegation of one nation, which is of secondary political importance but which possesses one of the largest merchant marines, declared that its government, in spite of reservations which it could have made on the subject of its participation in the selection of judges, accepted the proposal for the sake of the significant progress which it promised.
II. Applicable Law
What rules of law will the new jurisdiction put into effect? This a crucial question posed by the fact that the laws of maritime warfare are far from being codified and that, in spite of the efforts of the 1907 Conference, uncertainty persists with regard to a great many points, some of them very important. When there are conventional rules that bind the nations concerned, or when rules have become so well established by custom that they can be regarded as the expression of the tacit will of these nations, international jurisdiction need only apply or interpret such rules. But a situation may well arise in which the law of nations, actual or customary, is silent; what then is the duty of international jurisdiction? Such a situation gives pause for thought. Here is the set of rules proposed by Great Britain which, after doctrinal scruples were expressed by certain delegates, was adopted by the Conference without serious objection:
“If a question of law to be decided is covered by a treaty in force between the belligerent captor and a power which is itself or whose subject or citizen is a party to the proceedings, the court is governed by the provisions of the said treaty.
In the absence of such provisions, the court shall apply the rules of international law. If no generally recognized rules exist, the court shall give judgment in accordance with the general principles of justice and equity.”(Art. 7, par. 1 and 2.)
This is unquestionably a bold solution, but also one likely to exert the most beneficial influence on the development of international maritime law. The judges are thus set a delicate task, but we must trust the powers to choose them carefully enough that we can rely on the wisdom and moderation of their views. They will know how to amend a practice without overthrowing it. Such a provision reflects great credit on both the power which proposed it and on the Conference which voted for it. I emphasize this because it seems to me to signify outstanding progress for the concept of law in international relations.
Thus the Conference of 1907 has created the first international judicial organism of a permanent nature in the sense that, as soon as redress from decisions of the prize tribunals is sought, the new institution will function on its own without there being any need for a new agreement between the nations concerned. I consider it auspicious for the development of compulsory arbitration that this agreement could be reached in view of the fact that it means submitting to a court of justice disputes deeply involving vital interests and national prestige, matters usually subject to the traditional reservations. Even though the whole problem was perforce related to the idea of war, it was, I feel, well within the domain of a Peace Conference.
The first Peace Conference had made it incumbent upon the one that would succeed it to pursue the study of certain questions. The second Conference was honorbound to execute this legacy insofar as practicable. It followed the example of its predecessor and referred various problems to the consideration of a third Conference. The calling of the latter has been expressly provided for by several Conventions, and the Final Act ends with these words:
“Finally the Conference recommends to the powers the assembly of a Third Peace Conference, which might be held within a period corresponding to that which has elapsed since the preceding conference, at a date to be fixed by common agreement between the powers, and it calls their attention to the necessity of preparing the program of this Third Conference a sufficient time in advance, to ensure its deliberations being conducted with the necessary authority and expedition.
In order to attain this object, the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory committee should be charged by the governments with the task of collecting the various proposals to be submitted to the conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a program which the governments should decide upon in sufficient time to enable it to be carefully examined by the countries interested. This committee should further be entrusted with the task of proposing a system of organization and procedure for the conference itself.”
I regard this recommendation as important for two reasons: it establishes the fact that the holding of regular international conferences is now a universally accepted idea and that suggestions based on experience should be made to ensure that these conferences take place under the most favorable conditions. Certain delegates had been in favor of providing an actual link between the second and third conferences by setting up a committee which would have been the executor, as it were, of the outgoing conference and the prime mover of the conference to come. This idea had to be promptly abandoned in favor of the formula I have just read, the drawing up of which was not an easy matter. In spite of the purely diplomatic prudence which inspired it, it contains several interesting points.
The date of the next conference was not and could not be fixed since nobody can ever control the course of events, and since the year nominated might well prove totally unfavorable for a meeting of this kind. The interval provided for is fairly elastic. A certain amount of time must be allowed for the decisions of the 1907 Conference to take effect: the period allowed for signing does not expire until June 30; the agreements signed will have to be ratified and, in a number of countries, the ratification of these agreements, or at least of some of them, will require the approval of parliament; and finally, in some cases special executive laws will have to be passed. All this naturally requires considerable time. Only after that can we start thinking about the next conference, and it is in this connection that practical experience has pointed the way. A diplomatic conference must be prepared carefully and the problems awaiting solution subjected to careful study in. the various countries so that the delegations can come equipped with precise instructions about the main issues, thus avoiding the necessity of referring them to their respective governments at every stage. The agendas of 1899 and 1907 were too extensive and too vague. A committee of competent persons, formed well in advance, could render a signal service in collecting the various proposals, classifying them, and suggesting a program which would of course be decided upon by the governments themselves. Furthermore, regulations covering organization and procedure should be drawn up. In the wise recommendations made, which will, one hopes, find a receptive audience, there is an intentional omission: nothing has been said about the composition of the preparatory committee which will raise problems similar to those I have mentioned in connection with the court of arbitration. Let us hope that excessive touchiness does not thwart its appointment.
Finally, you will note that the calling of a third conference is provided for in only a general way; nothing is said about initiating it or about the place where it is to be held. The institution exists independently, and each power can on its own responsibility take the necessary steps to activate it. From the legal point of view this is a sign of progress because no longer do meetings considered useful appear to depend on the goodwill of any particular power. As a jurist, however, I cannot make such a statement without also stating that Russia deserves the recognition of all nations for the initiative which she took in 1899 and which she has valiantly tried to preserve in the aftermath of a terrible war, thus continuing a glorious tradition. She has shown the way once and will not hesitate to do so again, but she does not intend to monopolize the role of herald for the civilized world. As for the meeting place, if The Hague is not chosen it will not be because we have forgotten its gracious hospitality but because of consideration for The Netherlands government which cannot be tied up for years at a stretch. All legitimate sensitivities have been taken care of by a formula accepted by everyone.
It is more than time for me to conclude. I have attempted to give an objective account of what has been achieved and of what has been done to prepare for future achievement. Let us be patient and let us have confidence in the beneficial effect of time in consolidating what is already decided and in developing what is only anticipated. Time can indeed be a “galant’uomo”, to use the Italian phrase, but we must not leave it to work on its own; we must help it along. So let all of us who can exert any influence on international relations, be it in the sphere of theory or of practice, set to work. Let us devote ourselves neither to blind enthusiasm nor to blind disparagement of what has been done, but to constructive criticism that can lead the way to improvement; let us give properly measured consideration to every attempt and to every suggestion made to achieve success. Let all of us in each country search carefully for the real interests involved in any given question and for the changes in practice that might be effected by compromise – for habit is often a poor counselor, encouraging unjustified opposition to measures which would be to the general good.
I need hardly say that I confine myself to my own field, that of jurisprudence, and that I do not mean to encroach upon that of the statesman.
In closing, if I may be permitted to include the personal as I did in beginning this lecture, I promise you that I will devote to the task I have described the years of work still left to me. I would like to try in this way to justify the distinguished honor you have conferred upon me and to show my living gratitude to a country which welcomes me so warmly.
3. Georg Francis Hagerup (1853-1921), Norwegian jurist and statesman (twice premier of Norway) and member of the Nobel Committee (1907-1921), who spoke on the second Hague Peace Conference at the Peace Prize award ceremony in 1907.
7. General Order 100, 1863, dealt with martial law, protection ofpersons and property, deserters, prisoners, spies, flags of truce, etc. (Regulations of the Army of the United States and General Orders in Force, Washington, D.C.).
9. Quoted from Elihu Root [U.S. secretary of state and recipient of the Nobel Peace Prize for 1912], “Instructions to the American Delegates to the Hague Conference, 1907”, Department of State, Washington, D.C., May 31, 1907.
10. Dated August 12 (New Style, August 24), 1898, the first message stated the belief “that the present moment would be very favorable for seeking, by means of international discussion, the most effectual means of insuring to all peoples the benefits of a real and durable peace, and, above all, of putting an end to the progressive development of the present armaments” (James Brown Scott, The Hague Peace Conferences of 1899 and 1907, Vol. 11 [Baltimore: Johns Hopkins Press, 1909], p. 1.).
13. The “dum-dum” bullets, named for the city of Dumdum in India where they were first made, were outlawed by Declaration 3 of the 1899 Peace Conference. The laureate may be referring to the fact that the U.S. and Great Britain were recorded as opposed to its adoption, the U.S., at least, through a technicality: its delegates, objecting to the wording of the proposed declaration, presented an amendment which they considered more inclusive, but the original motion, being put to the vote first, passed, with the U.S. and Great Britain recorded as opposed.
21. The Pious Fund case (Mexico vs. United States): agreement to submit to the Hague Tribunal on May 22, 1902; award made on October 14, 1902. The Venezuelan Preferential case (Germany, Great Britain, Italy vs. Venezuela – eventually involving Belgium, Spain, United States, France, Mexico, The Netherlands, Sweden, Norway): agreement to submit on May 7. 1903; award on February 22, 1904. (See fn.1, p.159) The Japanese House Tax case (France, Germany, Great Britain vs. Japan): agreement to submit on August 28, 1902; award on May 22, 1905. The Muscat Dhows case (France vs. Great Britain): agreement to submit on October 13, 1904; award on August 8, 1905.
22. In 1904, during the Russo-Japanese War, the Russian fleet fired on English fishing trawlers in the North Sea, claiming Japanese torpedo boats were among the trawlers; the ensuing English-Russian dispute was referred to and satisfactorily settled by an International Commission of Inquiry.
24. In 1902, Germany, Great Britain, and Italy blockaded Venezuelan ports to enforce payment of claims which they and other nations (which had abstained from hostile action) held against Venezuela. Venezuela then agreed to a certain method of paying the claims but refused to give preferential treatment to the blockading powers. In May, 1903, the question was submitted to the Permanent Court of Arbitration which decided unanimously in favor of the blockading powers.