THE MACHINERY FOR PEACE

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.

The Unpopular Review Vol. I January-June 1914 · 第 27 / 67 题