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The expenses of and incident to every arbitration, including the remuneration of the arbiters, shall be equally borne by the contesting Powers. 10
“This morning," wrote the first American delegate, Mr. White, on May 27, "we had another visit from Sir Julian Pauncefote, president of the British delegation, and discussed with him an amalgamation of the Russian, British and American proposals for an arbitration tribunal. He finds himself, as we all do, agreeably surprised by the Russian document, which, inadequate as it is, shows ability in devising a permanent scheme both for mediation and arbitration. During the day President Low, who had been asked by our delegation to bring the various proposals agreed to by us (the American delegation) into definite shape, made his report; it was thoroughly well done, and, with some slight changes, was adopted as the basis for our final project of an arbitration scheme.”
On May 29 the detailed Russian articles on good offices and mediation were discussed in the Committee of Examination, in which the real work of the Commission was done. At that session, the second, Mr. Frederick W. Holls introduced a project for special mediation in a scheme for the selection, by disagreeing nations, of a neutral Power whose duty should be to bring them into harmony. This plan eventually made the project of mediation practical, and at the moment served to keep attention fixed on the American delegation, which was expected to keep well to the fore in advancing plans for pacific settlement.
At the third session of the Committee of Examination on May 31 it was announced that at the third meeting of the Commission on June 5 communication of the British and American projects would be formally made and it was added that both had been printed and distributed to the members of the Commission. Mr. White has told us that the American scheme was ready on May 27 and on May 30 Sir Julian Pauncefote wrote to Lord Salisbury:
I may mention that the United States delegates were instructed to present a project of international arbitration not dissimilar to mine in some respects, though hampered with provisions relating to procedure.
10 Sir Julian Pauncefote’s English text, Conférence internationale de la Paix, Troisième Commission, Annexes, 15–16.
It was prepared without knowledge of the Russian proposal. It will be laid before the Commission, but I am informed by my American colleagues that in view of the altered circumstances of the case, they will not press it, but support my proposal instead.
I have translated my project into French, and I will transmit the text as soon as it has been presented to the Commission.
The same dispatch contains a detailed account, practically the English text, of the British proposal, and in reply Lord Salisbury telegraphed on May 31 that “Her Majesty's Government entirely approve the course which your excellency has taken on this occasion.” 11
It was that day, May 31, that the whole matter came up in the Committee of Examination at its third session, as mentioned. Mediation had been discussed. The report of the session continues:
Before closing, the Committee acknowledges receipt from his Excellency Sir Julian Pauncefote of the more detailed project which he has had printed to develop his project for instituting a permanent tribunal of international arbitration, which he brought before the Third Commission in plenary session. This document will be printed and distributed. Mr. Holls read in the name of the delegation of the United States: 1. The following memorandum:
“Without insisting on the exact form of their project, the delegates of the United States are ready to amend the propositions submitted up to the present time to the Conference, so that these in the end shall contain what is essential in their own plan. It seems to them that it will not be difficult-as a result of the numerous propositions which may be made, on the subject of mediation, international inquiries and special arbitration—to add a Project for a Permanent Tribunal of Arbitration, which shall include the essential points of the American project.”
2. Annex No. 7 (organization of the tribunal).
It is probable that the French text of this latter document was not then prepared, for Mr. White's diary of June 1 records that, on his return that day from London to The Hague, “I found that our whole general plan of arbitration will be today in print and translated into French for presentation. I also find that Sir Julian Pauncefote's arbitration project has admirable points.” He recites the provisions of the British project and adds that "from a theoretical point of view, I prefer to this our American plan of a tribunal permanently in session. * * * During the morning Sir Julian came in and talked over
11 Miscellaneous No. 1 (1899), at dates cited.
our plan of arbitration as well as his own and that submitted by Russia. He said that he had seen M. de Staal, and that it was agreed between them that the latter should send Sir Julian, at the first moment possible, an amalgamation of the Russian and British plans, and this Sir Julian promised that he would bring to us, giving us a chance to insert any features from our own plan which, in our judgment, might be important. He seemed much encouraged, as we all are.”
On that same June 1 the English and French texts of the British project were received in London. The next day, June 2, Mr. White records that "during the morning De Martens, Low, Holls, and myself had a very thoroughgoing discussion of the Russian, British and American arbitration plans. * * * After a long and intricate discussion we separated on very good terms, having made, I think, decided progress toward fusing all three arbitration plans into one which shall embody the merits of all."
The American project being before the Committee of Examination as the third one of like purpose, it is now time to see what it provided. Without being essentially changed from the form in which it appeared in the instructions to the delegates, it had undergone some revision and the text, submitted to the Committee in French, reads in English as follows:
Resolved, that, with a view to aid in preventing armed conflicts by pacific means, the representatives of the sovereign Powers assembled at this Conference are invited by the present resolution to propose to their respective governments to enter into 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, 12 at least eight of which must be European or American Powers, and at least four of which must be of the number of signatories of the Convention of Paris, the Empire of Germany being considered as succeeding to Prussia and the Kingdom of Italy to Sardinia.
1. The Tribunal shall be composed of persons chosen on account of their high integrity and their competence in international law by a majority of the members of the highest court of justice existing in each of the adhering states. Each state signatory of the treaty shall have one representative in the tribunal. The members of it shall sit until successors shall have been given to them in due form by the same method of election.
12 The text of the paragraph from here on was substituted in the revision.
2. The Tribunal shall meet for organization at a time and piagreed upon by the several governments. However, it shall not -than six months after the general treaty shall be ratified by Powers mentioned above. The Tribunal shall appoint a per cierk and such other officers as may be found necessary. The Tshall be empowered to fix the place where it will meet and to char: same from time to time as the interests of justice or the convenie ! the litigants may seem to require. It shall fix the rules of proceci be followed
3. The Tribunal shall have a permanent character and shall alws ready to receive, within the limits of its own rules of procedure. cases and counter-cases, these cases either being submitted by signatory nations or by any other nations which shall desire to t recourse to it. All cases and counterwcases, as well as testimony i arguments to support or answer them, must be written or printe. All cases, counter-cases, depositions, arguments and opinions express: judgment must, after the sentence shall have been pronounced, be at its disposition of all those who may be disposed to pay the expense of the transcription.
4.13 Any difference whatever between signatory Powers may, by common accord, be submitted by the interested nations to the judgmen: of this international Tribunal, but, in all cases of which the Tribunal shall be seixed, the interested parties must engage, in addressing it, to accept its sentence.
5.1 In each particular case, the court shall be composed according to the conventions agreed between the litigant nations, either that the Tribunal may sit as a whole or that the nations may designate some only of its members of an uneven member and not less than three. In the case where the court should comprise only three judges, none of them may be either a native, subject or citizen of the states whose interests are in litigation,
18 The radical changes in this paragraph make it advisable to reproduce the original text as given in Secretary Hay's instructions. Note that the text as presented reversed the subject matter of this and the preceding paragraph:
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.
14 The original paragraph read:
5. A bench of judges for each particular case shall consist of not less than 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 ligitation in that case.
6. The general expenses of the Tribunal shall be divided equally or in equitable proportion between the adherent Powers, but the expenses arising from each particular case shall be borne by those which the Tribunal shall indicate. The emoluments of the judges may be arranged in such a manner that they may be payable only when the said judges shall have effectively completed their duties in the Tribunal. The presentation of a case wherein one or both of the parties may be a nonadherent state shall be admitted only upon the condition 15 that the litigant states in common accord take the engagement to pay respectively such a sum as the Tribunal shall determine to cover the expenses of the procedure.
7. Every litigant who shall have submitted a case to the international Tribunal shall have the right to a second hearing of his case before the same judges, within three months after the sentence shall have been verified, if he declares he can invoke new testimony or questions of law not raised and not decided on the first time. 16
8. The treaty herewith proposed shall enter into force when nine sovereign states, under the conditions indicated in the resolution, shall have ratified its provisions. 17
pinions en lounced, be:
- expense d.
All three proposals were now before the Conference, and on June 3 the Committee began its study of that part of the original Russian basis of the Commission's work which dealt with international arbitration. It was the understanding that the court proposals would be made into an additional chapter under this head, and the subject was assigned to the order of the day for the third session of the Commission on June 5 and for the fifth session of the Committee on June 7. As a matter of fact, the Commission session was devoted to adopting eight articles of the mediation chapter, except that at the beginning M. Beldiman of Rumania complained that the American project for a court had been published by the London Times on June 1 and by the Cologne Gazette the next day despite the fact that it had been marked "secret.” Note was taken of the statement and the Rumanian delegate was assured that the officials had not given out the text. This had been done ad
15 The original from here on read:
“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."
16 The conditional clause was in the following form in the original:
"Upon presentation of evidence that the judgment contains a substantial error of fact or law."
17 Cf. Scott's translation, op. cit., I, 799.