It is understandable that Germany and Great Britain should consider
their armies, their battleships, dreadnoughts, super-dreadnoughts, and
invincibles as constituting the chief machinery for peace. In
celebrating the twenty-fifth anniversary of his accession to the
imperial throne the Kaiser was hailed as "the true and central factor
of the past peaceful policy of Germany." These were Lord Blyth's
words, in recognizing the avowed policy of the Emperor to preserve
peace through the utmost practicable preparation for war; and
ex-President Taft, who would refer to arbitrators even questions of
national honor, spoke of this apologist of arming for conflict between
nations as the "greatest single individual force in the practical
maintenance of the peace of the world." The Kaiser's silver jubilee
was the signal for unstinted acknowledgment by the leading men of the
world that His Majesty's policy had preserved the peace of the German
Empire for a generation. In its exterior relations Germany had looked
too terrible to encounter, and the romantic, warlike spirit that
distinguishes the Teuton had found vent in the service of preparation.
The young Germans, both aristocratic and bourgeois, were encouraged by
every means to train, to show, to be martial, but not to fight. And it
will be recalled that Germany refused to discuss the limiting of
armaments at The Hague only because the Conference was not empowered
to deal finally with it.
In response to the Czar's call, delegations of twenty-six Powers
attended in 1899 the First Hague Conference; forty-three Powers were
represented at the Second Conference in 1909. These gatherings
formulated the world's opinion against many of the evils of war. Their
agreements expressly forbade international bloodshed except between
the actual fighting forces. They made it unlawful to sack cities, to
take or destroy private property on land, or to menace the peace and
safety of non-combatants. Those who observe that the nations have not
yet agreed to do away with war overlook the fact that the
non-combatant millions within belligerent nations may not be molested
in lives or property, save that they must bear the war's financial
burdens. With respect to most of the civilized dwellers of earth the
sword is forever sheathed. Among the fighters, too, wounds are quickly
bound, and quarter is expected and given.
The machinery of peace governing this world society is not complete.
It provides a way of peaceful settlement of disputes by arbitration.
It lacks a court such as that whose decisions, backed by police and
the more potent sentiment of the people, guard the king's peace in
civilized communities. But arbitration has done much to keep the peace
of nations. The experience of the United States is in point. Up to the
time of the Second Hague Conference Mr. John Bassett Moore finds
records of more than sixty arbitrations, the tribunals sitting with
overlapping terms of years that aggregate a hundred and
twenty-five--exceeding in number the years of this nation's life. The
total cost of these tribunals was doubtless much more than would have
been the expense of an actual court kept always in session.
Before The Hague Conferences, the American Government had already been
participating in what was tantamount to a permanent tribunal of
arbitration. The questions adjusted were of every class, not merely
pecuniary claims, but questions affecting what are called "vital
interests and national honor." The case of the Creole, for instance,
brought the United States and Great Britain close to war, and later,
in 1842, nearly caused a rupture of the conferences between Daniel
Webster and Lord Ashburton--a rupture which would almost inevitably
have led to hostilities. The case came before a tribunal of
arbitration in 1853, and was so quietly disposed of that the public
paid no attention to the award. Then there was the negotiation of the
Alabama Claims by Hamilton Fish. Lord John Russell answered our
proposal to Great Britain, that it involved the honor of Her Majesty's
Government, of which it alone was guardian, and the claims were not
subject to arbitration. After being examined and critically
formulated, they were eight years later submitted to the tribunal at
Geneva, and settled. Mr. Roosevelt, opposing President Taft's treaties
of arbitration with Great Britain and France, objected that they would
embrace "questions of vital interest and honor." Perhaps he had not
studied the cases of the Creole and the Alabama.
The values involved in American arbitral proceedings have been
enormous. More than a thousand claims were adjusted in cases of the
United States against Mexico in 1868, and a thousand more
counterclaims of Mexico were disposed of under one commission, the
total amount involved being well over half a billion dollars. And the
arbitral awards of the tribunals in which America participated have in
every case been final. Not one of the awards to which the United
States has been a party but was carried into effect by both
Governments concurrently. In rare cases new facts discovered have
reopened the proceedings, but on such occasions the parties proceeded
to end them in a spirit of justice and equity.
* * * * *
It was to nations trained in self-restraint that the Russian Emperor
addressed his rescript of August 24, 1898, recognizing the fact that
the preservation of peace had been put forward as the object of
international policy. More terrible engines of destruction were being
wrought, and the intellectual and physical strength of the nations,
with their labor and capital, were diverted from their natural uses
and wasted. Economic crises threatened the world because of war
preparations, the while sentiment against war's devastation found
concrete embodiment in arbitrated disputes. A conference was proposed
to limit armaments, to prevent armed conflicts, and to mitigate the
atrocities of war. The twenty-six nations that met at The Hague on May
18, following, codified the international laws of war and peace
already existing. Delegates of the forty-three nations that met in the
Second Conference on June 15, 1907, amended and strengthened these
codes, added to them, and appointed the meeting of the Third
Conference, to be held in 1915.
In the first two Conferences the rights and duties of neutrals were
defined, the employment of force for the recovery of contract debts
was renounced, and it was laid down that the "right of belligerents to
adopt means of injuring the enemy is not unlimited." The bombardment
of undefended towns was prohibited, together with the discharge of
projectiles from balloons, the use of bullets that expand or flatten
in the human body, the poisoning of wells, pillage, violation of
"family honor," confiscation of private property, the laying of
automatic contact mines that do not become speedily harmless, the
seizing of submarine cables, destruction of monuments and works of
art, and interference with religious customs. The killing
treacherously of individuals belonging to the hostile nation or army
or of those who have surrendered was outlawed and it was forbidden to
make improper use of a flag of truce, or of the national or military
colors of the enemy, or of the Red Cross badges.
The progress in these agreements reached by the Second Conference is
notable, in that it forbade that the rights and acts of a member of
the hostile nation be abolished, suspended, or regarded as
inadmissible in a court of law; that a belligerent compel a man to
fight against his own country, even though he were in the
belligerent's service before the war broke out, or to force the
inhabitants of seized territory to give information about the army of
the other belligerent, or about its means of defense. While all
appliances for transmission of news and for transport, whether by
land, sea, or air, may be seized, together with depots of arms and all
munitions of war--even if belonging to private individuals--they must
be restored when peace is made, with due award of damages. The
inhabitants of a territory are to be regarded as belligerents only if
they "carry arms openly," and that is to be the test of their
belligerency. Besides all this, the rights of prisoners of war are
sedulously guarded.
This code, relating to the laws and customs of war, received what many
critics of the Conferences regard as an undue amount of attention; it
was even charged that, in effect, it legitimatized war. It did quite
the contrary. Francis Lieber drew up for President Lincoln in the
second year of the American civil war rules, which Lincoln ratified
and promulgated in the famous General Orders No. 100--the first code
regulating the conduct of armies in the field. The international
convention drawn by the Brussels Conference of 1874, had its origin,
as acknowledged by its President, Baron Jomini, in these rules of
Lieber and of President Lincoln. To the United States honor is due,
not for legitimatizing war between nations, but for beginning to
restrict its operations to the actual fighters and their works of
attack and defense. At The Hague the work of the Brussels Conference
became in turn a basis for reaffirming this principle, and for
restricting more closely the field of combat.
Moreover, the principles of the Geneva Red Cross Convention were
adapted to naval war. Machinery for rescue and treatment of the sick,
wounded, and shipwrecked men of the world's navies was provided.
An International Prize Court was established, which, in the opinion of
Elihu Root, should later develop into the court of justice for the
nations. The only obstacle to ratifying the convention for this court
was swept away by the code of laws of naval war embodied in the
Declaration of London, and drawn in February, 1909, by delegates of
the European Powers and the United States. The liability to capture of
the merchant ships of belligerents throws their commerce largely into
the hands of neutrals. Efforts to prevent neutrals from trading with
the enemy follow. Then blockades, searches, and seizure of contraband
goods stir up strife with other nations, and give occasion for general
war. The American war of 1812 with Great Britain resulted from such
causes, the effects of which, again, the two nations barely escaped
during our Civil War; and the sinking of British merchantmen by Russia
during its war with Japan provoked strong resentment. Excepting two
questions, those respecting the conversion of merchant ships into
warships on the high seas, and as to whether the nationality or the
domicile of the owner shall be considered in determining "enemy
property," the London declaration embodies clear and definite rules
on which the International Court of Prize may render just decisions.
* * * * *
The measures for restricting the field of actual war were accompanied
at The Hague by the erection of machinery for the pacific settlement
of international disputes. That was work of prevention, and it was in
four parts.
In the first part the contracting Powers agree to "use their best
efforts to insure the pacific settlement of international
differences."
The second provides that proffers of good offices and mediation by a
third State, never shall be regarded as unfriendly. Throughout the
Turko-Italian and Turko-Balkan Wars, and during the Inter-Balkan
conflict, the European Powers acted as mediators under this provision,
and smoothed the way to peace.
The third part provided for international commissions of inquiry, such
as were comprehended in President Taft's proposed treaties of
arbitration with Great Britain and France, and Secretary Bryan's
proposed treaties with the Central American republics and with the
Powers of Europe and Asia. The intent of these commissions is to
investigate the causes of complaint and publish them, trusting to
international public opinion to accomplish a just settlement. This
machinery worked to bring about the voluntary payment by Russia of
$300,000 damages for the destruction of British fishing boats, fired
on mistakenly by Admiral Rozhdestvensky in his ill-fated expedition
against Japan. Again, the report of a commission on the French steamer
Tavignano, seized by the Italian torpedo boat Fulmine during the
Turko-Italian War, and concerning the attack on the Tunisian mahones
Kamouna and Gaulois, was accepted July 23, 1912, and referred for the
final solution of equities to The Hague Court of Arbitration.
This court--the fourth instrumentality--is composed of three distinct
bodies; namely, the Permanent Administrative Council, the
International Bureau, and the Court of Arbitration proper. The
Permanent Council is made up of the diplomatic envoys of the signatory
Powers accredited to the Netherlands, besides the Dutch Minister for
Foreign Affairs, and was constituted after its ratification by nine of
the Powers. The Council is permanent in the sense that its members are
always at The Hague; it controls the International Bureau, appointing
its staff and methods of administration, and reporting the proceedings
of the court to the signatory Powers.
The International Bureau receives all the documents and stipulations
in disputed cases, where arbitration is agreed upon and referred to
The Hague, acting as a board of registry. It places its staff at the
disposal of tribunals of arbitration, and occasionally of those not
constituted at The Hague, and its expenses are paid by the Powers.
The Court of Arbitration proper is really an "eligible list" of
individuals, "of recognized competence in questions of international
law, enjoying the highest moral reputation," designated by the
forty-four Powers signatory to the convention. Their terms are six
years, renewable, not over four members appointed by a Power. Their
jurisdiction extends over all cases submitted to them, but sometimes
the parties agree to a special tribunal not selected from the list.
Two names may be selected from the list of arbitrators by each of the
Powers in dispute, and the amended convention of 1907 provides that
only one of these can be its envoy or chosen from its nominees to the
Court of Arbitration. The four arbitrators thus selected themselves
choose a fifth as umpire, or, if the votes of the four are equally
divided, the choice of umpire is intrusted to a third Power to be
agreed upon. If there is failure to agree upon a third Power, each
party to the controversy makes a separate choice of a Power, and the
two thus selected will try to appoint the umpire. But if they, in
turn, fail to agree, each shall within two months' time present two
candidates from the general list, excluding those selected by the
disputants or of their nations; by lot among these, the umpire is
finally elected.
* * * * *
The work of the Third Conference, besides adding to the statute law of
war, will largely concern the regulations governing the Court of
Arbitration. Since it was constituted in April, 1901, this court has
passed judgment in fourteen important cases without having established
needed rules of practice. It is not decided whether the cases and
counter-cases shall be presented with argument, or merely with
statements of the facts, the conclusions sought, and the proofs. The
practice is both ways. The thirty-five articles relating to "arbitral
procedure" fail to prescribe rules, leaving this task to the tribunal
in each case. As a result the terms of procedure in the Casablanca
dispute, for instance, which were decided hastily to avert a
threatened war, were brief and vague, and they left the discretion of
the tribunal uncontrolled. The order of oral debate is not determined
chiefly because a disputant is touchy about being classed as plaintiff
or defendant. Clear rulings on points of practice are not made when
presented, although the agents and counsel are entitled by the rules
to "present orally to the tribunal all the arguments they may consider
expedient in defense of their case." Yet opportunity to argue a motion
is sometimes not afforded when the motion is made, and an argument
presented later would be out of place. It would aid procedure to have
arguments presented and rulings made as the points come up. Finally,
the informal discussions between court and counsel frequently hinder
the straightforward presentation of a case.
But the chief defect of these arbitral tribunals, as in all
others--for practice has not reached the perfection of choosing
disinterested judges belonging to nations not concerned in the
controversy--lies in their temptation to compromise. Gallatin, in the
Northeastern Boundary case with Great Britain, remarked that the
arbitrator "has always a bias to split the difference." The Casablanca
case, the decision of which really did avert war, and more than any,
so far, justifies the establishment of the world court, depended on
law and fact, but was compromised. Dr. Heinrich Lammasch, a
distinguished member of several Hague tribunals, speaks of the
"preponderatingly diplomatic character" of this decision. Other
decisions have been criticised for the same reason, notably those of
the North Atlantic Fisheries and the Orinoco Steamship. Compromise,
while of value, is the function of diplomacy or mediation, and the
cases referred to The Hague are admittedly those which diplomacy
cannot adjust. The remedy is by direct agreement to exclude from the
tribunal judges who sit as diplomatic agents of their governments. A
beginning in this direction is in Secretary Bryan's plan for
commissions of inquiry, consisting of five members, three of whom
should be chosen from other countries than those in dispute. But these
would be merely committees. The defect of Mr. Bryan's plan, and the
great lack of the Hague Court of Arbitration, is that the agreements
to refer cases in dispute are purely voluntary; the one thing for
friends of peace to work for, of course, is to make it as easy for
differing nations as for differing men to hale each other into court,
and as impossible to refer their differences to force.
The International Court of Prize has already come nearer to this ideal
than the Court of Arbitration. It is a regular court of justice. Its
judges are not arbitrators, they receive a fixed compensation, their
jurisdiction in cases of appeal from the national prize courts
relating to captured merchant ships and cargoes, is compulsory. In
absence of treaty provisions between the states in dispute, the
convention adopted by the Second Hague Conference reads, "the court
shall apply the rules of international law; if no generally recognized
rule exists, the court shall give judgment in accordance with the
general principles of justice and equity." Before ratifying the
convention, Great Britain in 1908 called a conference in London of the
chief naval Powers, which codified the laws of naval war, covering
blockades, contraband, service ill-becoming neutrals, destruction of
neutral prizes, transfer to a neutral flag, hostile character, convoy,
resistance to search, and compensation. Here a whole category of cases
is at once removed from the judgment of biased minds.
The existing Court of Arbitration may be resorted to increasingly as a
means of diplomatic conciliation; but by its side and above it should
rise, in the opinion of all authorities on international law, a
Supreme Court of Arbitral Justice, not diplomatic but judicial, that
will render its decisions rigorously according to the declared law
and the evidence. The Second Conference at The Hague approved a
convention for the establishment of such a court. The United States
has proposed to the Powers that the Prize Court be invested with the
functions and jurisdiction of a Court of Arbitral Justice. The
practical difficulty met at The Hague was in the appointing of
permanent Judges. Forty-four, one for each state including The
Netherlands, would be too many. A court of but fifteen Judges was
recognized as desirable. Such a court could not be chosen from
forty-four nations, and the delegates were in a quandary. The
arguments were irrefragable, of course, that a small, independent body
of magistrates selected in advance is needed to settle controversies
between nations as they arise, and as a court of appeal from the
decisions of temporary tribunals. Such a tribunal might well become a
court of first as well as of last resort, because of the difficulties
and delays usually experienced in making up the mixed arbitral
commissions from the eligible list of the Court of Arbitration. The
alternative recourse is especially needed when the imminence of war
requires a speedy reference, as in the Casablanca case. For these
reasons the convention was drawn and approved, leaving to the Third
Conference the task of constituting the court. Ernest Nys, a member of
the Permanent Court of Arbitration and Counselor of the Court of
Appeals of Brussels, urging the necessity of such a tribunal, makes
the point that its members should not be chosen to represent any
countries, as such, but rather in a way to assure that the different
systems of law and procedure, as well as the principal languages of
the world, might be represented. By this means the world peace may be
permanently established. Organized justice will succeed arbitration,
guaranteeing to individuals and states the security of their rights
and institutions, precisely as the "king's peace" had come to
guarantee them within the limits of each sovereignty.
* * * * *
In this review of the instruments making for peace by conciliation and
law, the arguments for war have not been ignored. If at The Hague in
1915 the Powers should decide to nationalize the private industries
that supply armaments and engines of war, the artificial stimulus
given to those industries and the exploitation of new appliances for
war would cease; manufacturers would no longer oppose the limitation
of armaments, which every nation desires. Complete preparation for war
did not prevent the Balkan States and Turkey, not yet emerged from the
civilization of the Middle Ages, from coming to the death grip with
each other. It was different with those nations whose Council of
Ambassadors, sitting in London, and watching the kaleidoscopic changes
in the Balkans, became by the statesmanlike influence of Earl Grey, a
clearing house, through which the affairs of the six chief Powers were
adjusted to a harmonious ending. It is noteworthy that in the more
than forty years of Europe following the close of the Franco-Prussian
war--perhaps as good as a cycle of Cathay--those six Powers, though
armed for provocation, have by such careful negotiations remained at
peace. But making the allowance due to this remarkable abstention from
war, to which must be added the hundred years of peace between the
United States and Great Britain, the inherent appeal of war to the
imagination and emotions of mankind must still be recognized.
War's mutilations have never roused aught but horror, its waste of men
and treasure are deplored. But the spirit of strife, of daring, and of
heroism remains in human breasts. If war is outworn, if bloodshed and
sacrifice of lives are to cease between civilized states, as they have
long ceased within those states, it must be that better means have
been found to satisfy the profound human need of expression and of
conquest. The German Emperor, while keeping up the medieval pageantry
of arms, has welded his nation into a militant power of industry and
science. Their arts are not ignoble, their industries are not
monotonous, but have taken on the aspect of imperial enterprise and
daring. Their scientists are rescuing mankind from disease and freeing
it from menial labors, while their merchants and traders are
modernizing the orient, setting examples of method and discipline,
incidentally, to their rivals in the civilized nations. It is by such
means that civilization need no longer rear itself on human slavery;
the very beasts of burden have been freed, and man has seized control
of nature's forces. By them he is borne through cities, manners,
climates, councils, governments, more swiftly than Ulysses went, and
beyond the paths of all the western stars.
More distant horizons of science have been opened. The transmutation
of the elements, but recently announced, is expected to realize more
than the dreams of the alchemist. If we are to believe Professor
Soddy, who with Sir William Ramsay obtained in 1903 the first direct
proof that radioactive processes are veritable transmutations, this
discovery in its consequences should "absolutely revolutionize the
whole condition of existence." For of all processes, this alone
accounts for the wealth of energy dissipated so prodigally throughout
the universe over apparently endless periods of time. Once means are
found to accelerate the transmuting rate of radioactive atoms,
Professor Soddy believes the same means will suffice to break up the
other elements now unchanging, releasing energy which man may harness
a "million times greater than any at present utilized." In his
masterly address in 1908 before the American Society of International
Law, Elihu Root traced the development of the international spirit by
the use of human inventions conquering space and time. Clans,
communities, nationalities have lost their early function, and
frontiers and territorial possessions are changing their political
significance. Terrestrial pioneering is not ended, the continents are
rediscovering each other in new relations.
Much has been done to open new channels for the play of men's energies
away from war. War has had its uses to break up the old order, to let
loose new and unknown forces in society, to set men free from
tradition. That was the great work of the Crusades. Chivalry and
knighthood are still needed, but of a new order. The martyrs for
aerial navigation are the type. The machinery for peace that has been
set up in the new palace at The Hague will not confine the adventurous
spirit of mankind.