Arbitration, Mediation, and Conciliation - The hague peace conferences




It was not until the 1890s that there came many new opportunities to advance the ideas of arbitration enthusiasts. During that decade, marked as it was by naval building, imperial rivalries, and war, arbitration nonetheless seemed to emerge as a major feature of international relations, and the U.S. government was at the forefront of this development. As the period began, President Benjamin Harrison's secretary of state, James G. Blaine, brought together in Washington during late 1889 and early 1890 the First International Conference of American States. This conference recommended a number of proposals to promote hemispheric unity, among them a plan by which the American republics would have referred to arbitration all disputes that diplomacy could not settle, excepting questions of independence. Blaine called this agreement "the first and great fruit" of the conference, but he rejoiced too soon. No government ratified the agreement.

Even before it was apparent that the Pan-American arbitral plan would fail, the United States was concluding an agreement with Britain for arbitration of an acrimonious dispute. Endeavoring to stop the indiscriminate killing of fur seals in the Bering Sea by both British subjects and American citizens, State Department officials grasped at mistaken translations and interpretations of Russian documents which seemed to prove that sovereignty over the sea had passed to the United States with the acquisition of Alaska. The Coast Guard seized Canadian ships and arrested their crews. Britain protested vigorously. Blaine's successor, John Watson Foster, negotiated an agreement by which the two powers established a tribunal in Paris to hear the case. In an award announced in 1895 the tribunal upheld Britain's contention that the Bering Sea was part of the high seas and thus not subject to the police actions of any government in time of peace. It became necessary for the State Department to resume negotiations to save the seals.

The Bering Sea tribunal had barely completed its labors when a serious Anglo-American quarrel arose over arbitration in another matter. The United States had long urged arbitration of the border dispute between Venezuela and British Guiana, but the British government, fearing that such an arbitration would encourage demands for changes in boundaries of other British colonies, repeatedly rejected American suggestions. Late in 1895, President Grover Cleveland's new secretary of state, Richard Olney, convinced himself and the president that Britain was very possibly claiming territory without real justification and was, therefore, about to violate the Monroe Doctrine. The secretary sent stern messages to London. Lord Salisbury, who was both prime minister and foreign minister, responded with a statement that sounded much like a schoolmaster explaining a few simple facts to a student with little intelligence. The Monroe Doctrine was not "public law," as Olney claimed, it was simply a statement made by a distinguished American statesman. Salisbury was accurate enough, but Americans insisted that the Monroe Doctrine had a larger meaning that other nations should recognize. Cleveland sent Congress a special message that resounded with appeals to honor and patriotic duty. In both the United States and Britain there were calls for war. After a few days calmer counsel prevailed. The British government decided that arbitration, after all, was the best way out of the crisis and concluded a treaty with Venezuela by which the two countries established a tribunal in Paris to determine the boundary. To the irritation of many Americans, the tribunal, in an award announced in 1899, largely upheld the British position.

In addition to the proceedings at Paris, the boundary controversy had another important result for arbitration. Shocked by the emotional excesses of the recent crisis, British and American leaders at last yielded to the pleas of peace spokesmen for a treaty of arbitration. Secretary Olney and the British ambassador, Sir Julian Pauncefote, negotiated a treaty according to which their governments were to agree that for a five-year period they would settle territorial and pecuniary claims through arbitration. The treaty made no exception for national honor, but it provided an elaborate procedure for setting up tribunals and handling appeals that should have been adequate safeguards for the interests of both parties. Optimists believed the treaty could be a first step toward a permanent world tribunal. Olney and Pauncefote signed the treaty on 11 January 1897, and Cleveland and his successor, William McKinley, both urged ratification. Unfortunately, partisan politics, dislike for Britain, and fear of a departure from the traditional policy of avoiding entangling alliances influenced many senators. After approving amendments that would have deprived the treaty of any real force, the Senate on 5 May 1897 declined consent for ratification. Great was the disappointment of arbitration enthusiasts, but there soon came another opportunity for their cause.

The Russian foreign ministry, on 24 August 1898, sent a circular note to all governments with diplomatic representation in St. Petersburg. Czar Nicholas II proposed a conference to consider limitation of armaments. The United States was quick to accept, although there was no interest in Washington in limiting or reducing armaments, and some influential people suspected a connection between the Russian proposal and the recent American victory in the war with Spain. When the Russians added improvements in the laws of war and arbitration to the agenda, American officials became more interested. Secretary of State John Hay instructed the American delegates to work for agreement on these subjects, and he told them to present a plan for a permanent international tribunal modeled on the Supreme Court of the United States.

Upon request of Nicholas II, Queen Wilhelmina of the Netherlands provided the conference with a meeting place at The Hague. Representatives of twenty-six governments were present for the opening session on 18 May 1899 at one of the Dutch royal palaces, the House in the Wood. In addition to the delegates, peace workers gathered at The Hague, anxious to encourage the "Peace Conference," as they called it, to make large initiatives for peace. To many people, the term "Peace Conference" soon seemed a misnomer, for the conference spent much of its time discussing war. It failed to agree to any reduction in armies and navies or their budgets but did adopt declarations against poison gas, needlessly cruel bullets, and the throwing of projectiles or explosives from balloons or similar devices. It was more successful in its work with the laws of war. It framed two conventions about this subject, one of which was a codification of the laws of land warfare and the other a convention extending the Geneva Convention of 1864 (popularly known as the Red Cross Convention) to naval warfare. While humanitarians hailed these conventions, another document, the Convention for the Pacific Settlement of International Disputes, was more interesting to peace workers. This convention summarized experience with arbitration, mediation, and commissions of inquiry and made several significant innovations in the application of these methods to the resolution of international differences.

No part of the conference's work required more diplomacy than Title IV of the Pacific Settlement Convention, "On International Arbitration." The American delegates soon discovered that there was little chance for adoption of their plan for a permanent tribunal, and they decided not to press for its acceptance. Instead, they supported a plan offered by Pauncefote, the chairman of the British delegation. The British proposed that each signatory power name two jurists to a list and that parties to an arbitration should choose judges from that list. The Russians also advanced a plan, proposing that five powers be given authority to name one judge each and that these judges should always be ready to act as arbitrators. Both plans called for an administrative bureau at The Hague. The chairman of the U.S. delegation, Andrew D. White, and the delegation secretary, Frederick W. Holls, worked closely with the British and Russians to secure an acceptable compromise. For a time German objections threatened to defeat their efforts; and it required much persuasion before the German government agreed to support a plan believed somewhat weaker than the original British and Russian proposals. The conference then agreed that each signatory power should select "four persons at the most, of known competency in international law, of the highest moral reputation, and disposed to accept the duties of Arbitrator." These people were to be members of a permanent international institution, the Permanent Court of Arbitration. A bureau at The Hague would maintain their names on a list and carry out all administrative responsibilities. Powers wishing to enter into arbitrations could choose arbitrators from the list, but there was no requirement that they do so.

Efforts at incorporating obligatory features into the convention largely failed. The Germans, in particular, opposed obligatory arbitration, and without their support little was possible. The completed convention included, however, a statement that the signatory powers recognized arbitration "as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle," and article 27 declared that the signatory powers would "consider it their duty, if a serious dispute threatens to break out between two or more of them, to remind these latter that the Permanent Court is open to them." This provision, based on a French proposal that Holls had warmly supported, was the subject of serious disagreement within the American delegation. The naval delegate, Captain Alfred T. Mahan, the famed historian of sea power, argued that the article could lead to conflict between the Hague Convention and the Monroe Doctrine. Debate within the delegation ceased only when White read a statement to the conference that in signing the convention the United States was in no way departing from its traditional policies toward Europe or the Americas.

Many of the framers of the Peaceful Settlement Convention were as concerned with good offices and mediation as with arbitration. When a government extends an offer of good offices to powers in controversy or at war, it makes its diplomatic services and facilities available to them. When a power acts as a mediator, it takes an active part in negotiations, acting much as a middleman. In actual practice, it is difficult to distinguish between good offices and mediation, and the First Hague Conference did not make such a distinction, but it did recognize the need to guarantee their benevolent character. Too often such offers had been viewed as unfriendly interventions, sometimes for good reasons. Americans remembered how the imperial French government during the Civil War had been unsympathetic to the Union cause and had, at an inconvenient moment, offered mediation. The Peace Conference sought to prevent such problems in the future by including in the convention a declaration that powers that were strangers to a dispute had the right to offer good offices and mediation even during hostilities and that the exercise of this right could "never be regarded by either of the parties at variance as an unfriendly act." The convention was as careful in its treatment of recipients of offers of good offices and mediation. Article 6 declared that offers of good offices and mediation "have exclusively the character of advice, and never have binding force," while article 7 stated that mediation could not interrupt, delay, or hinder mobilization or other preparations for war.

Article 8 of the mediation section was in a class by itself. The result of a proposal by Holls—other delegates referred to it as La Proposition Holls —it provided for what was called "special mediation." According to its terms, each party to a conflict could choose another power to act in its place. For thirty days the disputing powers would cease all communication about their controversy and let their seconds make an effort at settlement.

In addition to the articles on mediation and arbitration, the conference included provisions in the convention for commissions of inquiry. It was already an accepted practice to promote international conciliation by appointing commissions to ascertain facts. Such commissions were not expected to make recommendations for settlement, but they were expected to make reports that could aid quarreling governments to work out their differences. There was, however, no generally accepted procedure for establishing commissions. Cleveland had appointed a commission to gather evidence during the Venezuelan boundary controversy, and while the commission did much good work, the fact that it was constituted by only one party to the dispute was lost on no one. Obviously, such one-sided arrangements should be avoided in the future. The Hague Convention provided that commissions should be organized according to a procedure similar to that by which arbitral bodies could be constituted from the list of the Permanent Court of Arbitration and that the commissions should confine their activities to the determination of facts. They would present reports to the conflicting powers but those powers would retain full freedom to interpret the findings of the commissions.

During the fifteen years following the Peace Conference of 1899, the Convention for the Pacific Settlement of International Disputes was of considerable importance in international relations, and no country displayed more interest in the convention and the Hague Court than the United States. American statesmen made promotion of the court an important part of foreign policy. Upon the suggestion of President Theodore Roosevelt, the United States and Mexico gave the court its first case, a dispute over whether the cession of California to the United States had ended Mexico's obligation to give financial support to an ancient fund for the conversion of the California Indians—the Pious Fund of the Californias. The court carefully examined a large quantity of historical evidence and, on 14 October 1902, rendered an award stating that Mexico was still obligated to support the fund.

Roosevelt's initiative in the Pious Fund case won approval from American and European peace movement leaders, but soon he made clear the limits of his confidence in the Hague Court. He refused to submit the controversy over the Alaska Panhandle's boundary with Canada to the court. A joint commission had failed to settle the matter, a problem since the Klondike gold rush in 1896, but Roosevelt agreed to what was essentially another commission, although called a tribunal. The president and the British monarch were each to appoint three "impartial jurists of repute." Roosevelt appointed his secretary of war, Elihu Root; his close friend Senator Henry Cabot Lodge of Massachusetts; and former senator George Turner of Washington, who was well acquainted with commercial relations between his state and the Alaskan gold-rush ports. King Edward VII appointed the lieutenant-governor of Quebec, Sir Louise A. Jetté; a Toronto lawyer, A. B. Aylesworth; and the lord chief justice of England, Lord Alverstone, who had a prominent role in the Bering Sea arbitration. Alverstone voted with the Americans for a decision favorable to American contentions. Great was the anger of Canadians who charged that no one could have expected the American jurists to be impartial, despite reasons for believing that the impartiality of the British Empire jurists was also suspect. Roosevelt told people who believed he had risked a sound claim to arbitration that a tie was the worst that could have happened, and he insisted that the London proceedings had not been an arbitration. History does not support what the president was saying, but his interpretation has, nonetheless, been widely accepted.

With regard to a more serious controversy, the Venezuelan debt affair, Roosevelt was as pleased to make use of the Permanent Court of Arbitration as he had been determined to avoid it in the Alaska boundary dispute. After Britain, Germany, and Italy blockaded Venezuelan ports in late 1902 and early 1903 to force Venezuela to honor financial obligations due their nationals in that country, other governments asked that the claims of their nationals in Venezuela also be paid. The question then arose as to whether the blockading powers should have preference when the payments began. Roosevelt saw an opportunity for the Hague Court. Upon his suggestion a court was again constituted from its list of arbitrators, and the interested powers began a long and complicated arbitration. The court finally announced, on 22 February 1904, an award stating that the blockading powers should have preference, a disappointing decision to many of the warmest friends of the court, for it seemed to reward violence.

Before World War I broke out, the Hague Court rendered awards in twelve other cases, two of them involving the United States. The Treaty of Washington of 1871 and the Halifax commission had failed to put to rest all difficulties over the North Atlantic fisheries, and the American and British governments referred their controversy to the Permanent Court in 1909. The court, on 10 September 1910, announced an award that upheld most British contentions but which was so carefully stated that the Americans as well as the British believed justice had been done. A few weeks after making this award, the court, on 25 October, made an award in another case involving the United States, the Orinoco Steamship Company case, a dispute between a company owned by U.S. citizens and the Venezuelan government. The award was substantially in accord with the position of the United States government.

The provisions of the Pacific Settlement Convention for commissions of inquiry and good offices and mediation were not used as often as the arbitration sections from 1899 to 1914, but they were of importance in connection with the most serious armed conflict of the era, the Russo-Japanese War. When Russia's Baltic fleet, en route to the Far East, fired into a British fishing fleet off Dogger Bank on the night of 21–22 October 1904, having mistaken the fishing boats for Japanese torpedo boats, there was a furor in Britain, and high officials in London talked of using force to stop the Russian fleet. Anger subsided when the Russian government suggested establishment of a commission of inquiry under terms of the Hague Convention. Four admirals—one each from Russia, Britain, France, and the United States—were appointed to a commission that carefully investigated the matter. Upon receiving the commission's report, the Russian government paid damages and the matter was closed.

As the war passed its decisive stages, peace movement spokesmen hoped that powers signatory to the Hague Convention would remember its provisions for good offices and mediation, and they were elated when President Roosevelt mediated a settlement, the Peace of Portsmouth of 1905. The American president made no use of the language of the Hague Convention, but it is probable that that document influenced him, for at one time he suggested that the Russians and Japanese hold peace negotiations at The Hague.

Many peace spokesmen in the United States and Europe believed Roosevelt's efforts to improve the Hague system would prove as important in the long run as his mediation of the Russo-Japanese conflict. The president in 1904 promised the visiting Interparliamentary Union that he would call another Hague peace conference, and in October of that year Secretary of State Hay sent out a circular suggesting a new conference. Later, Roosevelt stepped aside in response to a Russian request that Nicholas II have the honor of calling the conference officially, but the United States took an active role in the conference.

The Second Hague Peace Conference, which met in 1907, was much larger than the 1899 conference, for it included delegates from most Latin American countries. The Latin Americans were present because the United States asked for their inclusion. Indeed, Latin American policy was one of the most important considerations of the United States at the conference, but Secretary of State Elihu Root and the president did not forget the old dream of a world court. The chairman of the U.S. delegation, Joseph Hodges Choate, and another American member, James Brown Scott, struggled valiantly to secure establishment of a new tribunal, the Court of Arbitral Justice, which would have stood alongside the Permanent Court of Arbitration but would have been a truly permanent court, always in existence and ready to hear cases. Unfortunately, it proved impossible to agree upon a system of appointing judges without offending smaller powers that could not have continuous representation. As the conference closed, the Court of Arbitral Justice was only a project attached to a voeu (formal wish) that the powers signatory to the Final Act bring the court into existence as soon as they agreed upon the selection of judges and several details of the court's constitution.

The negotiation of arbitration treaties and treaties of conciliation were other important aspects of the diplomacy of peace from 1899 to 1914. Britain and France in 1903 negotiated a treaty of arbitration, and peace movement leaders then urged the United States to follow this example. Roosevelt and Hay yielded to their pleas, and Hay, in 1904 and 1905, negotiated treaties with France, Switzerland, Germany, Portugal, Great Britain, Italy, Spain, Austria-Hungary, Mexico, and Sweden and Norway. To the anger of Roosevelt and Hay, the Senate in advising ratification insisted that the preliminary arbitration agreements be actual treaties and therefore subject to the ratifying process. Roosevelt thereupon refused to proceed further, but Hay's successor, Root, was convinced that treaties amended so as to meet the Senate's requirements would be better than none. He prevailed upon the president to consent to negotiation in 1908 of a new set of treaties. The Senate found these treaties more to its liking and approved ratification.

It would have been well if President William Howard Taft and his secretary of state, Philander C. Knox, had been as cautious as Root in dealing with the Senate, for they would have been spared a large disappointment. Knox negotiated arbitration treaties with Britain and France in 1911 that made no exceptions for such considerations as national honor. The treaties merely stated that any matter that was justiciable would be arbitrated. Since whether or not a dispute was justiciable was subject to varying interpretations, it seemed that the treaties contained adequate safeguards for the interests of the governments concerned, but the Senate saw the matter in a different light. Believing that the treaties could limit the nation's freedom of action, the Senate refused consent for ratification.

President Woodrow Wilson's first secretary of state, William Jennings Bryan, was less interested in arbitration than his immediate predecessors, although he negotiated renewal of the Root treaties. He was more impressed with the conciliatory effects of commissions of inquiry and believed that their development could be carried much farther than the Pacific Settlement Convention had done. He hoped for treaties of conciliation incorporating new ideas about investigating commissions. Soon after the Wilson administration took office, he advanced what he called the president's peace plan. He urged nations to agree to refer their disputes to investigating commissions for six months or a year. While awaiting the reports of the commissions, they would refrain from going to war or increasing their armaments. The signatories of the treaties would be free to accept or reject conclusions of the commissions or to go to war, but Bryan was confident that the period of waiting could have a cooling-off effect and help avert war. He negotiated twenty-nine treaties according to this plan, and twenty of them were ratified. Sadly, this initiative for peace was interrupted by the outbreak of World War I.

The declarations of war in 1914 also interrupted American efforts to bring the Court of Arbitral Justice into existence and to ensure the meeting of a third Hague peace conference. Since the conference of 1907, American diplomats had been conducting quiet negotiations with the British, French, and Germans to establish the Court of Arbitral Justice without waiting for the consent of all powers that had participated in that conference. While these negotiations had reached no definite conclusion, in 1914 there were some reasons to hope for success. Negotiations for a third Hague peace conference were even more promising. The 1907 conference had recommended that another conference meet after an eight-year interval, the same as between the first two conferences. To many peace spokesmen and theorists, the conference seemed to be developing into a permanent institution. A periodic world conference and a world court with judges always ready to hold sessions—these were the institutions necessary for a viable world organization, they believed. In the United States the peace societies and the new Carnegie Endowment for International Peace brought pressure to bear upon Wilson and Bryan to use their influence to bring about the meeting of the conference, and this the president and the secretary of state agreed to do. Planning for the conference had made considerable progress when war began in 1914.

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