Arthur Eyffinger A Highly Critical Moment Role and Record of The 1907 Hague Peace Conference

NILR 2007 THE 1907 HAGUE PEACE CONFERENCE: ROLE AND RECORD 197
A HIGHLY CRITICAL MOMENT: ROLE AND RECORD OF THE 1907

HAGUE PEACE CONFERENCE
by Arthur Eyffinger*
1. Some preliminary notes

1.1 Misconceptions
1.2 Old thinking and new
1.3 The 1899 and 1907 Conferences: differences in outlook
1.4 An American initiative
2. Substance of the Conference

2.1 War on land
2.1.1 Laws and customs of war on land (Convention IV)
2.1.2 Opening of hostilities (Convention III)
2.1.3 Rights and duties of neutral powers and persons in war on land
(Convention V)
2.2 Naval warfare
2.2.1 Establishment of an International Prize Court (Convention XII)
2.2.2 Restrictions on the right of capture in maritime war (Convention XI)
2.2.3 Status of enemy merchant-ships at the outbreak of hostilities (Convention VI)
2.2.4 Conversion of merchant-ships into war-ships (Convention VII)
2.2.5 Adaptation of the principles of the Geneva Convention to maritime war
(Convention X)
2.2.6 Bombardment of undefended ports, towns, villages, dwellings, or buildings
(Convention IX)
2.2.7 Laying of automatic submarine contact mines (Convention VIII)
2.2.8 Rights and duties of neutral powers in maritime war (Convention XIII)
2.3 Peaceful settlement of disputes
2.3.1 Pacific settlement of international disputes (Convention I)
2.3.1.1 Commissions of Inquiry (Articles 9-36)
2.3.1.2 General arbitration treaty (Articles 37-40)
2.3.1.3 Permanent Court of Arbitration (Articles 41-50)
2.3.1.4 Arbitral procedure (Articles 51-85)
2.3.1.5 Court of Arbitral Justice
2.3.2 Limitation of the employment of force for the recovery of contract debts
(Convention II)
3. Aftermath
* Dr. Arthur Eyffinger (1947), classicist and legal historian; former head librarian ICJ, cur-
rently director Judicap, The Hague.
Netherlands International Law Review, LIV: 197-228, 2007

2007 T.M.C. Asser Instituut and Contributors
doi: 10.1017/S0165070X07001970
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198 A. EYFFINGER NILR 2007
1. SOME PRELIMINARY NOTES
Historians rarely convey happy tidings. In the final analysis, even the most
inspired and loftiest of ideas hardly ever live up to their promise. Sifted by time,
filtered by experience, they mostly command distinct qualification. The Hague
Peace Conferences are very much a case in point. To us, with the hindsight and
sobering wisdom of a century, the ideas they embodied and the expectations
they raised present themselves as distant ideals well out of reach. It has lent a
ring of naivet to the endeavours and an aura of quixotism to their advocates.
Critics often have been less than clement, indeed, as is proposed here, unduly
severe. The tale is no less fascinating for it. Amidst the gore of a century of
clashing ideology, the checked growth of world organization and the uphill
battle to implement the Rule of Law stand out on the credit side of intellectual
achievement and moral pride. Time will tell; perhaps, on the slow tide of geo-
political processes, petit petit, the ideal may yet drift toward us.
Upon its perhaps untimely hailing, the battle-cry To The Hague! embodied
the philosophy of progress and the insistency on change. If the expectations
proved all too idle, the apprehensions they reflected proved all too real. In coun-
tering decadence from complacency and anarchy from despair the aspirations
bespoke a Society Under Siege. They epitomized that puzzled fin de sicle that
saw the centurys two major boasts, the nation-state and the Industrial Revolu-
tion, somehow conspire into a deadly threat to civilization itself.
1.1 Misconceptions
The Hague Conferences,1 sadly, created their own myth. In this, various
misconceptions had their say. King Demos, the vox populi, unwisely labelled
them as Parliaments of Peace. The designation was a blatant misnomer on two
accounts. These were no Peace Conferences in the way Munster or Vienna
had been. Intentions at The Hague were not to conclude but to preserve peace,
1. Literature on the Conferences is abundant. A comprehensive bibliography in Arthur Eyffin-

ger, The 1899 Hague Peace Conference: The Parliament of Man, the Federation of the World
(The Hague, Kluwer Law International 1999) pp. 469-474. Still pertinent among early literature
are A. Pearce Higgins, The Hague Peace Conferences (Cambridge 1909); William I. Hull, The
Two Hague Conferences and Their Contributions to International Law (Boston, Ginn 1908);
W. Schcking, Das Werk vom Haag, 5 vols. (Munich, Duncker & Humblot 1912-1917). Modern
research: Calvin DeArmond Davis, The United States and the First Hague Peace Conference
(Ithaca, NY, Cornell University Press 1962); id., The United States and the Second Hague Peace
Conference (Durham, NC, Duke University Press 1975); J. Dlffer, Regeln gegen den Krieg?
Die Haager Friedens-Konferenzen 1899 und 1907 in der internationalen Politik (Berlin, Ullstein
1981); Shabtai Rosenne, The Hague Peace Conferences of 1899 and 1907 and International Arbi-
tration, Reports and Documents (The Hague, T.M.C. Asser Press 2001); A. Eyffinger, The 1907
Hague Peace Conference, The Conscience of the Civilized World (The Hague, Judicap 2007)
(forthcoming).
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not to end but to forestall war. While addressing issues which affected the
Peace of Nations, they were sounding-posts between powerblocks in deadlock,
like the Helsinki Talks were to the Cold War Era. Those delegates had wisdom
on their side who embraced the debate, not its few tangible results.
Nor could the Hague Conferences boast to be, as the flowery parlance of the
day insisted, The Parliament of Man, the Federation of the World. The Confer-
ences were emphatically diplomatic meetings nothing more, nothing less
among nations that, most of them and Russia to start with would never
have a legislative, representative body impair the idol of sovereignty, be this in
the domestic or international arena. No concept of parliament figured in the
international arena, and this perhaps posed the greatest handicap of all. If only
a simple majority vote had sufficed, most projects would probably have passed
smoothly into conventions and resolutions.
Contrary to parliamentary procedure within the, as a rule, infinitely more
coherent domestic sphere, at The Hague, within that crucible of mistrust and
decoy that made up world diplomacy, absolute agreement had to be secured,
with a single, even the tiniest of nations able to outjockey all others. Given
the widely divergent nature of administrations and legal cultures represented,
amidst perpetual tension and hidden agendas, small wonder it was that una-
nimity proved elusive at this first experimenting with a perfectly innovative
concept. On the precious few occasions agreement on substance was attained,
political preoccupations readily marred the outcome.
In this, rivalry of the Dual and Triple Entente, clashing ideology between
representative democracies and impregnable autocracies, and mistrust between
the Great and Small all had their say. At The Hague, expert diplomats and legal
luminaries faced what, for all bragging of Balance and Concert, the Westphalian
System really boiled down to: inherent antagonism and inveterate opportunism,
a conflict model devoid of all solidarity. Here the element most pertinent to our
debate is touched upon. The Hague Conferences were the head-on clash of two
opposite perceptions of international society and conflicting outlooks on the
law.
1.2 Old thinking and new
Nineteenth century society, indoctrinated by the stern positivism of Von

Martens and Klber in Germany or Austin in Britain, deemed inter-state rela-
tions the domain of Foreign Ministries. International law was handmaiden to
national politics, a theory of command identifiable as Ausseres Staatsrecht.
Warfare was its perfectly legitimate, indeed most effective instrument. As
advanced by Lord Salisbury in parliament in 1887, the very term international
law was misleading: not being enforceable by tribunals, this was no law in
the proper sense. A powers perception of international law was best verified
in its formal acts of state, such as treaties, which expressed its explicit will and
interests. Concluded for ad hoc reasons, conditioned by circumstance and valid
among signatories only (and mostly for a restricted period at that), these treaties
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eminently served, indeed typified the essentially impromptu character of inter-

national society of the period. In 1906 German Foreign Minister Von Blow
declared that wherever treaties clashed with vital interests they were never to be
taken all too serious: paper wont blush!2
In the 1860-70s, in the wider context of the humanitarian thought generated
by the brutality of modern warfare in the Age of Technology (as exemplified
by the American Civil War and Franco-Prussian War) progessive lawyers and
political scientists (Bluntschli, Rolin, Moynier, Westlake, Asser) first seriously
challenged this outlook.3 In this, the ideas of Rousseau and Cobden went side
by side. As Bluntschli and his colleagues saw it, social progress of the indus-
trial age adamantly imposed change. The days of cabinet wars and backroom
diplomacy were numbered. In an era of unprecedented economic prosperity,
peace was too precious an asset to be left at the whim of despots. In times of
peace nations should co-operate as much as possible and in times of war reduce
mutual injury to the bare minimum. Conflicts should preferably be settled in an
amicable manner.
In spite of raving nationalism, these men felt, the true spirit of the times was
lesprit dinternationalit. The progress of humanity went from independence
to interdependence, from patriotism to international solidarity. If nationalism
served kings and dynasties, internationalism served peoples and democracy; if
the first was the driving force of polarization, the other was the best incentive to
co-operation. If the one meant war, the other meant peace, if the one barracks,
the other wealth.
The durable, objective basis of International Society, in this perception, was
the law. Law, not as the expression of raison dtat, but as the moral legacy of
mankind. Law that bespoke not the individual will but the collective con-
science, not separatism but consensus. Its prerequisites and determining
elements were not the sovereign but his people, not the state but humanity.
Sovereign monarchs might create binding obligations they did not create law.
Far from being the sport of fickle diplomacy and national incentive, the law
lay anchored in the shared tenets and values of all peoples. In this perception,
law was not static but evolutionary, not morally indifferent, but existentially
normative.4 In its usages and customs the organic progress of civilization itself
transpired. International law, in short, sanctified human conscience and social
awareness, embedded these in codes of universal appliance.
2. In 1907, at The Hague, this diplomat, with Von Schlieffens plan ready at his desk, had the
sanctity of the Belgian frontiers solemnly guaranteed. War practice was not much better: in the
1870 Franco-Prussian war the 1864 Geneva Convention, far from being observed, was positively
and deliberately abused.
3. A superb overview in Martti Koskenniemi, The Gentle Civilizer of Nations; The Rise and
Fall of International Law 1870-1960 (Cambridge, Cambridge University Press 2001), opening
chapters.
4. It would stretch reality to identify the new doctrine as a return to natural law; still its norma-
tive approach reached back beyond Westphalia to Grotian ideas of interna justitia.
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The omnipresent terms conscience and civilization were benchmarks of

this new perception, which challenged the Westphalian System itself. Its advo-
cates were the men who, in 1867, founded the first journal of international law
(Rolins Revue), who occupied the first chairs of the emerging discipline, and
in 1873 established the Institut de droit international in Ghent and the Interna-
tional Law Association in Brussels. These were The Days The Law Was Won,
crucial to the history of the discipline. The phraseology of the 1899 Martens
Clause probably best exemplifies this new outlook on the law.5
The new views did not sink in readily, nor were they welcomed wholeheart-
edly. The command theory of law, so eloquently worded by Austin, was hard
to die, if it ever did. In 1899, the Old and New first really came to grips. At
The Hague, the reactionary bulwarks of diplomacy invariably dismissed inter-
national lawyers as mere technicians, whose intrusion into their sacred realm
was unduly presumptuous. Inevitably, the outcome of this first debate was non-
conclusive. The all too many substantial non liquets left the world puzzled.
Still, as enlightened delegates saw all too clearly, The Hague, for all its pitfalls,
meant nothing less than the Opening of the International Era.
Meanwhile, in its normative and universal approach the new legal doctrine
had an eminent and immediate appeal to the many other branches of interna-
tionalism, from pacifism and parliamentarianism to socialism and feminism.
Lawyers obliged, reciprocated, and soon enough manoeuvred themselves into
the heart of the wider social debate. Their accessibility repaid itself. Parlia-
mentarians and pacifists, by virtue of Public Opinion, helped secure their ius
standi in the Hague arena.6
In this process of decades two bodies, both founded in Berne, played a
prominent role: the Interparliamentary Union, established in 1889 to assemble
members of electorate bodies, and the International Peace Bureau, founded
in 1891 to represent a full hundred peace societies worldwide. It would
be hard to overestimate the role of these two bodies in the Belle Epoque, or
their impact on the Oeuvre de la Haye.7 Along with the Institut, they figured
as trats-dunion, countering polarization between the powerblocs in Europe.
Their annual meetings were intellectual powerhouses. Here the vexing issues
of the day were addressed most incisively. They tackled major dilemmas such
as whether self-determination should be enforced through armed intervention,
5. The Martens Clause, compromise of heated debate, was the preamble to the Convention on
Warfare on Land. Wherever the Conventions Rglement was inconclusive belligerents remain
under the protection and the rule of the principles of the law of nations, as they result from the
usages established among the civilized peoples, from the laws of humanity, and from the dictates
of the public conscience (italics added). The idea spanned a full century. Bluntschli rephrased the
supranational historicism and Volksgeist element of his Berlin teacher Von Savigny. Feodor Mar-
tens was a pupil of Bluntschli at Heidelberg.
6. See Verdiana Grossi, Le Pacifisme Europen 1889-1914 (Brussels, Bruylant 1994), and
Eyffinger, supra n. 1, at pp. 42-68.
7. See Grossi, supra n. 6.
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an issue most pertinent to the multi-national Hapsburg Empire and the Balkan
and Baltic areas. Or whether arbitration, that panacea of dispute settlement,
was in the final analysis an instrument of diplomacy to secure peace, or rather
a judicial device to impose justice. Actually, to this generation, the relationship
between Peace and (social) Justice posed perhaps the paramount problem. The
awareness grew that peace was as readily liable to abuse for selfish ends as was
war. Indeed, as many held in 1899, such sophism had brought about the Hague
Peace Conference in the first place.
1.3 The 1899 and 1907 Conferences: differences in outlook
Most of the above observations hold good for both Peace Conferences. Still,
the difference in outlook between the 1899 and 1907 bodies was substantial.
External circumstances accounted for this mostly. In the interval of a mere
eight years the world had changed dramatically. As ever, wars had heralded
this change. On the eve of the First Conference, in 1898, the legendary Spanish
overseas realm had been virtually eclipsed by McKinleys young Triumphant
Republic. Within a month of the Conferences adjournment, two determined,
upstart Boer republics, to the amusement of the world, bravely, and long with
impunity, challenged the worlds leading naval power. While dumdum bullets
appalled observers, all appeals to the Hague Court were indignantly dismissed
by either party. Meanwhile in China, European powers quenched a Boxer Revolt
in blood, thus forcefully punishing a victims defiance of their imperialism. In
1902, German, English and Italian cruisers blocked and bombarded Venezuelan
ports to wrench the interest on their loans from a recalcitrant dictator. Was this,
as many surmised, the launch of a Scramble for the Americas? To top it all,
in 1904, another massive war broke out between an old power in decline and a
new one on the rise. To the worlds stupefaction, Japan comfortably established
its military and naval supremacy over Russia.
By then, by virtue of versatile diplomacy, keen economic pressure and
military bravura the USA, too, had comfortably established its world promi-
nence. It was to Roosevelt, significantly, that DEstournelles de Constant and
European parliamentarians turned, and not in vain, to help activate the Hague
Court. As a consequence, the PCAs first cases concerned the American
hemisphere. It was to Andrew Carnegie, the epitome of American optimism
and capitalism, that 1899 veterans turned to have the outward splendour of a
Palace radiate The Hagues substantial contribution to peace. Clearly, it was
the New World one looked upon for progress. No keen observer could possibly
ignore the winds of change picking up.
And yet, to add to these observers perplexity, these same years, all over
Europe bilateral arbitration treaties exploded. In 1904, Britain and France
from sheer fear of that most whimsical and impetuous of autocrats, der Kaiser
concluded an Entente Cordiale that put an end to centuries of rivalry. It passed
the test of a Moroccan crisis of wilful German making. The 1906 Algeciras
Conference sealed German isolation. To Europes peril, its omnipresent anxi-
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eties of Einkreisung turned into trauma. Historians have called these years the
epoch of Diplomatic Revolution. Cards were shuffled in what would prove the
last deal before War.
The 1907 Hague Conference duly reflected these changing times and, as a
consequence, was of a distinctly different nature than its predecessor. If 1899
broke the ice, as a perfect novelty it resorted to tentative speculation mostly. To
1907 by contrast clung the aura of critical urgency. Polarization was eroding
the cake of custom of the Concert. Social revolt loomed imminent. A general
feeling prevailed that time was running out.
Again, if 1899 had been the prerogative of European Powers and their satel-
lites, 1907 was the first and as would turn out only truly global summit
before the League Era. Here the Latin-American nations emphatically showed
their legal and diplomatic skills. They did not just attend, they often set the pace
and, steeled in Pan-American Conferences, at times imposed their norms upon
their former masters.
As the 1899 Conference placidly took the pulse of a century in a debate from
which all reference to topicality was deliberately excluded, in 1907 politics and
the law stood horns locked. The Conference was the Auseinandersetzung of
three centuries of state policy and war practice with thirty years of thoughts and
Reports of the Institut. Old and New Thinking clashed head-on as did Europe
and the Americas, Great nations and Small over issues that kept them worlds
apart. It was a Conference that was eminently to the point.
In 1899, legal ambitions were advanced to stretch Realpolitik to its limits.
Not too much progress could realistically be expected from a repetition of
moves a mere eight years later. Progress where 1899 had failed in the disar-
mament paragraph was blocked by Russia itself. Having emerged severely
crippled from the Japanese War it badly needed restore its military and navy to
regain former prestige. Disarmament issues were ruled out from the first.
By contrast, the alleged triumphs of 1899 urgently called for re-examina-
tion. In less than a decade they had revealed themselves mere Pyrrhic victories.
Mukden and Thushima and the bombardment of Venezuelan undefended
townships had shown the inadequacy of the 1899 code of war, its many incon-
sistencies, and all intricacies left unanswered. The powers had only too keenly
abused this situation as ready pretext not to observe its stipulations. In similar
tenor, the PCA, ignored the first three years of its existence had, once its
machinery was activated, raised more frowns than solved disputes. Clearly, here
too, the proof of the pudding had been in the eating.
The 1907 Conference addressed the 1899 Conventions in a thorough, yet
essentially pragmatic manner. Even so, consensus was rarely agreed upon. Still,
if much debate was abortive in the short run of power politics, its imprint in
the long run of the law would prove indelible. In the final analysis, The Hague
1907 was the moment the die was cast. The perfect stalemate over naval issues
facilitated Von Tirpitz fleet and Fishers Dreadnoughts. From here on, Europe
ran rapidly downhill, in spiral course towards the abyss.
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1.4 An American initiative
The 1899 Conference had adjourned sine die. With wars and skirmishes inter-
vening, little opportunity presented itself to suggest a sequel. Significantly, the
initiative thereto was taken not by a nation and not in Europe. Pursuant to their
first ever meeting in the New World occasioned by the 1904 St. Louis World
Fair, the Interparliamentary Union and assembled Peace Societies submitted a
request to President Roosevelt to personally take the matter to hand. The gesture
attests to the vibrant American internationalism of the period and to Roosevelt
international prestige. Not exactly a pacifist by conviction he had, in previous
years and for reasons of his own, rekindled the Pan-American Movement and
ingratiated the world of pacifism by a range of bilateral arbitration treaties. In
1905 he mediated peace between Japan and Russia at Portsmouth (NH) and was
awarded the Nobel Peace Prize for it. Roosevelt, in a first circular letter to the
nations from October 1904 emphatically included the Latin-American world in
the Hague Process.
The Conference was postponed several times first in 1904, at the request
of Russia itself. With war still raging in the Pacific, it considered the invitation
ill-timed. Actually, it did not wish to see its Far East imperialism jeopardized
by mediation or have its war policy criticized by a World Conference. In 1905,
it equally turned down Roosevelts proposal to orchestrate its peace-talks with
Japan in The Hague. Within a week after Portsmouth, the Russian ambassador
paid a visit to the White House to formally inform Roosevelt that the Czar now
felt in the position to resume the initiative (!). To Russia, the Conference served
to rewin its lost prestige and distract attention from internal revolt.
As in 1899, preparations were entrusted to Feodor Martens. This diplomat
initially toured all ministries of Europe in shuttle diplomacy avant la lettre.
In April 1906, right after the allaying of the Morocco crisis in Algeciras, the
Programme was dispatched and the date set for July 1906. At that juncture
Switzerland voiced protest. The Red Cross Conference in fulfilment of its
pledge to the 1899 Conference, planned for 1904 and postponed by war, was
scheduled for June 1906. Further delay was necessitated by the meeting of the
Third Inter-American Conference in Rio in July. As the presence of the Latin-
American nations was deemed of the essence, The Hague was rescheduled
to 1907. On June 15, 1907, 256 delegates from 44 nations assembled in the
medieval Knights Hall of the Hague Houses of Parliament. That same day, the
Latin-American nations en bloc adhered to the 1899 Conventions.
2. SUBSTANCE OF THE CONFERENCE
Success and failure seem wholly inadequate terms to evaluate the tentative
process of sounding and probing that dragged on, as some had it, for a full
four months, due to the sheer number of committees and the insistence of small
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nations to be given the floor on every occasion. For one thing, 1907 revealed
the logistics of democratic procedures at global conferences. Suggestions to
delegate representation or vote by proxy were rejected, as was the call for
abandonment of all voting. As many felt, no voting, whichever way it swung,
could do justice to weeks of debate within comits dexamen, sub-committees,
Commissions and, finally, the Plenary; it was the process itself that mattered.
They had a point. Already within a matter of years, seemingly unworldly wishes
from 1899, in the unstoppable process of thought, matured in 1907 into tailor-
made conventions. No expert in the unruly domain of international diplomacy
will easily depreciate that process.
2.1 War on land
2.1.1 Laws and customs of war on land (Convention IV)
In 1899, many commentators considered the convention on land warfare,

however provisional and defective, a signal success and the worthy companion
of the arbitration convention. Its proviso of the Martens Clause, in its commit-
ment to the highest ideals of civilization and human conscience served as
effective stopgap of abuse.8 Imposing limitation of the right to inflict injury
was the Conventions key principle (Art. 22). The Conventions substance
was embedded in a Rglement in which three decades of humanitarian efforts
had found legal expression and definition.9 It featured as the moral legacy of
that grim Iron Age which, due to the leve en masse, had witnessed war on
unprecedented scale and, due to technology, of unparalleled slaughter. Along
with a discussion of the 1899 Declarations on balloons, deleterious gases, and
expanding bullets, what the 1907 Conference had in mind, rather than revising
the 1899 Rglement, was supplementing its articles in the light of practical
experience in the Russo-Japanese war, notably regarding the rights and duties
of neutrals and the opening of hostilities.
The normative role of the 1907 Convention is its wider acceptance, more
perhaps than its substantial progress. In 1907, the 1899 Rglement was
submitted to the careful scrutiny of a much larger gremium. Its emendations
8. Martens himself called the Clause a Mutual Insurance Society against abuse of force
in war. It accepted disaster as part of life, did not condone, let alone legalize it, but offered the
guarantee to protect non-combatants and diminish the evils of war so far as military necessities
permit. By accepting the Convention, nations pledged themselves to instruct their armies accord-
ingly.
9. Summoned as in 1868 by Czar Alexander II, in 1874 12 nations, the fine fleur of European
diplomacy, agreed in Brussels most of them willingly, Britain and Germany reluctantly on
a Declaration which encapsulated moral concern. If never ratified, Brussels imposed minimal
standards of conduct. Brussels and its examination by the Institut (in 1875, 1877, in the Oxford
Manual of 1880, and in 1888) were normative to the 1899 debate and raised not much comment in
1907.
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reflect the insight grown by experience. Featuring as the accepted code of the
civilized world it has in essence withstood the test of time and war, thus to
feature, in ethics and phraseology, as the template of, perhaps, The Hagues
most critical contribution to the world, its humanitarian code.
A major addition to the Convention, which served as preamble to the Rgle-
ment, was the effective sanction put on the non-observance of these Regulations:
the responsibility and liability to compensation of the tresspassing nation for
acts committed by its forces (Art. 3). As regards these Regulations Germany,
pursuant to its stand in 1899, insisted that volunteer militia and resistance
groups, to be entitled the status of belligerents, should carry arms openly and
respect the laws and customs of war (Art. 2). On the spur of recent experience,
Japan initiated improvement of the Bureaus of Information on POWs (Art. 14).
Conditions of detention and payment of prisoners of war were brought in line
with the 1906 Geneva Convention (Art. 17).
Article 23 of 1899, which stipulated acts prohibited to belligerents, prompted
a fairly heated debate which mirrored divergent practice in Anglo-Saxon and
Continental military tradition. Discussion hinged on the forced recruitment of
native guides in occupied territory (practised in the mostly uncharted Balkan
areas) and the compulsive enlisting of civilians (Art. 44). It was agreed upon,
if not unanimously, that nationals of invaded countries should not be recruited
for operations directed against their country, which stipulation was extended to
persons in the invaders service before the outbreak of war.
In 1904, the 1899 Declaration on Balloons had expired; in a debate initiated
by Renault (France), who wanted to forestall that new, possibly humanitarian,
discoveries were rashly banned, Lord Reay (GB) mused whether two elements
(land and sea) did not suffice for warfare. His views prevailed and the bombard-
ment of undefended townships by balloons or any means whatever was
prohibited (Art 25). Historic monuments and hospitals were accorded special
protection (Art. 27). In similar tenor and based on pertinent 1902 examination
by the Institut submarine cables connecting neutral countries with occupied
territory were protected (Art. 54). Still, with hindsight, it was precisely the lack
of keen judgment in 1907 in curbing technology (chemicals, U-boat, air-strike)
which, in the next century, would entail catastrophy unheard of. Here, too, 1907
was a critical moment.
2.1.2 Opening of hostilities (Convention III)
The divergent views voiced by 19th century doctrine on the desirability and
legal status of formal declarations of war or, in their conditional variant,
ultimatums only mirrored the bewildering inconsistency of state practice.
European powers, including France and Britain, ignored the concept at will. In
1907, Russian indignation over Japans 1904 surprise attack on its fleet moored
in Port Arthur begged the question. A recent report (1906) by the Institut, as
ever keen in keeping the pulse of society, guided the debate. While advocating
the principle, whether as declaration or ultimatum the Institut drew attention to
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the law, the common interests of states and the spirit of loyalty. Inasmuch as
the declarations objective was to forestall surprise attack, the Membres recom-
mended the expiry of a delay sufficient to preclude all misunderstanding.10 The
1907 Convention insisted on previous and unequivocal warning (Art. 1) and
notification of neutral powers without delay (Art. 2). To help third parties
resolve on their position, France vainly suggested the explicit statement of
reasons for declaring war even if no illusions were entertained as to the truth-
worthiness of such statement.
2.1.3 Rights and duties of neutral powers and persons in war on land
(Convention V)
The position of neutrals in times of war had been problematic ever since the
medieval concept of just war had been abandoned. According to that doctrine,
admittedly more alive in the minds of theoreticians than pertinent to practice,
the prerequisite and legitimation of war was precisely the upholding of the
universal social fabric, which precluded neutrality. With the replacement of
this doctrine with formal criteria of warfare in early modern times, a law of
neutrality was gradually developed, even if up to the Napoleonic era the rights
of belligerents took distinct precedence over those of neutrals.
In addressing the issues the Conference complied with a Voeu expressed
by the 1899 Conference. The objectives set in 1907 were as modest as they
were pragmatic: to strike a balance between the interests of belligerents and the
rights and duties of neutrals, and to convert into a solid code of law as many
usages the powers would agree upon. In this, the 1875 Rules of Washington
compiled by the Institut served as guidance. To start with, and at the insistence
of Belgium, the Conference decided on the inviolability on principle of neutral
territory (Art. 1).
With respect to the position of neutral powers France submitted a draft
proposition balancing usage and doctrine. It linked the duty of belligerents to
refrain from certain acts to the express duty of neutrals to prevent these acts
from occurring on their territory. It highlighted the prohibition of transit and
transport across neutral territory (Art. 2) or the installation of radio and tele-
graph installations (Art. 3), a stipulation first formulated in the 1906 Wireless
Telegraphy Regulation of the Institut and actuated by Russian activities on
Chinese territory (Chefoo) during the 1904 siege of Port Arthur. Art. 10 stipu-
lated that the forceful repulsion of intruding belligerents should not in itself be
deemed a hostile act.
10. The Netherlands suggested a delay of 24 hours as accorded even by Napoleon, to laxen
the permanent state of mobilisation of the nations. Russia concurred, to enable overtures for rec-
onciliation by third parties. These propositions were rejected and a security against surprise attack
lost.
NILR_2007-2-CS2.indd 207 8/2/2007 10:32:13 AM

As regards the regime of neutral persons who resided in belligerent states

and their property, German propositions to grant special status did not carry.
The Convention provided for the crossing of soldiers into neutral territory (Art.
6), their internment (Art. 12) and the appliance of the Geneva Convention to
their wounded (Art. 12).11 Most other articles were of a rather technical and
fairly limited nature. The Convention reflected the state of the art of doctrine.
Delegates never went out of their way to force the hand of opponents. Still, the
Conventions III, IV and V, along with their Martens preamble, constituted by
far the most enlightened and pertinent code of conduct of the pre-WW I era.
2.2 Naval warfare
The Russian decision to put the complexities of naval warfare on the agenda
was a bold one. In its propositions, it lived up to the desire expressed in its
Conference programme to preferably examine pressing issues arisen from the
experience of the years just past rather than initiating a philosophical debate.
Precisely the bitter experience of the Russo-Japanese war had instilled upon the
nations the critical urgency of finally charting that most unprincipled, unruly
realm. The very nature of war at sea and the silence of the law conspired to
make naval warfare a gruesome business, presenting as little hope for salvage as
for mercy. It was a veritable mer boire, therefore, the Conference addressed,
full of technical pitfalls and political susceptibilities. Its substance was divided
over three Commissions.12 Long overdue, the debate was more in the order of a
first salute than serious tackling the many riddles involved. Its mostly abortive
examination was continued in London two years later, in a tte--tte of the
great naval powers.
In blocking progress, the natural enmity between the worlds leading naval
and military power, Great Britain and Germany, naturally asserted itself. Still,
more pertinent still perhaps was the ideological incongruity of whatever little
the Continental and Anglo-Saxon law traditions had added up to. For centu-
ries on end and notwithstanding Consolato del Mare, Rles dOlron or
Laws of Wisby piracy and reprisal, public no less than private, had consti-
tuted the universal plague of the magnus intercursus of nations in times of
peace and war alike. Guerre de course and lettres de marque lived side by side
with Courts of Admiralty and Angarie Laws. Conflicts between belligerents
and neutrals over issues of prize law and contraband, the immunity of private
property, the definition of continuous voyage, or the interpretation of infection
hostile and droit de cabotage were ubiquitous. The competence of national prize
11. Belgium and Luxemburg were at issue with Germany over the requisitioning by bellig-
erents of railway material of neutrals. The Conference allowed this in case of extreme necessity
at the discretion of the belligerent! (Art. 19).
12. War at sea was discussed by the Third Commission, maritime law by the Fourth Commis-
sion, the Prize Court by the First Commission.
NILR_2007-2-CS2.indd 208 8/2/2007 10:32:13 AM

courts and the laws they applied (but rarely published) was generally contested.
In the absence of consistency, and with whatever norms were enforced liable to
controversy, objectivity was hard to attain.
As Martens never stopped recalling, it was Czarina Catharina II who, as early
as 1780, had auspicated a first attempt at codification along the continental lines
of free ship, free goods, an aspiration sadly frustrated by British opposition.
Economic warfare had to reach another sad pinnacle in the Napoleonic Era
before, at the closure of the Crimean War, in 1856 in Paris, seven nations includ-
ing Britain had concluded upon a Declaration, again at a Czars initiative, in
which privateering was ruled out, the inviolability of enemy goods on neutral
vessels or neutral goods on enemy vessels (with the exception of contraband)
was recognized and binding blockades were made conditional to their effective-
ness.
By 1907, however, the astounding progress of technology had obliterated
all previous thought, as amply demonstrated by the 1898 Spanish-American
and 1904 Russo-Japanese wars. Recent incidents, such as the blockade and
bombardment of Venezuelan ports over the collecting of debts, likewise
preoccupied the Conference. In short, in addressing these issues, the Fourth
Commission, chaired by the (due to progressive illness) untypically impatient
and inflammable Feodor Martens, literally traversed the deep.
The Conference did not stop here. Prompted by the 1906 Red Cross Conven-
tion it also endeavoured to apply humanitarian principles to the domain of war
that needed it most. The sheer fact that the debate on naval issues attracted
capacity crowds of delegates from first to last attests to the widely appreciated
urgency of the substance-matter at hand. To be sure, attendance was actuated
by self-interest mostly. What ranked high on these gentlemens agendas was
(here) to maximize the freedom for ones navy and (there) the protection of
ones commerce. The perfect failure of governments prior to the Conference
to agree on anything through diplomacy aboded little hope. Britains position,
it was generally felt, was to be critical to the debate. Delegates were promptly
served: Britain, in bold, innovative propositions, first advocated the abolition of
all contraband, then an International Prize Court.
2.2.1 Establishment of an International Prize Court (Convention XII)
Over the centuries, national prize courts had built for themselves a dubious
reputation of bias and prejudice, the epitome of the iudex in causa sua principle.
Their application of national rather than international law made neutrals disre-
gard their verdicts. In the Russo-Japanese war, Britain had found the adverse
decisions to its ships by the St. Petersburg imperial prize court hard to swallow
and even harder to appeal to. Following spurious attempts at reform, the
urgency of the matter had readily been appreciated by the Institut. As early as
1877 it had recommended the joint institution, at the opening of war, of a Court
of Appeal by belligerent parties. In 1887 it had adopted a Rglement to that
NILR_2007-2-CS2.indd 209 8/2/2007 10:32:13 AM

purport. In 1905, in Christiania, the International Law Association had resumed

the debate.
Much to British discomfort, the issue was first raised by the German delega-
tion. Its draft proposition suggested an ad hoc tribunal of five, made up by two
admirals and three members of the PCA, which would act as court of appeal for
private individuals from national prize courts of first instance, and be competent
to deal with issues concerning the belligerents exclusively. Against this, and as
if to show its entirely different perspective, Britain proposed a scheme provid-
ing for a permanent court consisting of lawyers only, to be drawn from amidst
the powers with major merchant marines, and to serve appeals by states as well
as individuals, but then only in appeals from the highest national prize courts
and regarding matters concerning neutrals exclusively.
In view of its judicial implications the issue was relegated to the First
Commission, which dealt with Courts. A questionnaire and subsequent sub-
committee helped sorting out the German and British propositions. This
ensued in a draft Convention which accorded the proposed court complemen-
tary competence to national prize courts (following two trials at the most) in
questions of law and fact relating to belligerents and neutrals alike: for neutral
states and individuals in property questions, among belligerents concerning
enemy cargo aboard a neutral ship, an enemy ship captured in a neutral powers
territorial waters, and a capture allegedly in violation of a convention or enact-
ment. The Court was vested with comptence de sa comptence and to apply
treaty law or, if not applicable, the pertinent rules of international law, or else
an event more likely than not to occur, given the absence of a proper code of
maritime warfare the general principles of justice and equity. Its anxieties
over these legal non sequiturs made Britain invite naval powers to the 1908
London conference.
In spite of fundamental differences of opinion delegations, persuaded of
the eminent relevance and with American and French guidance, overcame all
hurdles of procedure (Arts. 28-50) until a last insurmountable stumbling-block
presented itself in the method of appointing judges. One easily agreed on 15
judges, 9 constituting a quorum (Art. 14). Each of the eight great powers would
provide a permanent judge, while the smaller powers were to provide judges
and deputy-judges by rotation and proportionate to certain criteria (Art. 15).13
Here, for the first time, the complexities of appointment and election were
revealed to a world in which the equality of all sovereign nations before the
law was accepted, yet the factual influence of the great powers had to be duly
honoured as well. The Brazilian representative Barbosa, the smallest man at the
Conference, in emotional interventions and brilliant, elaborate addresses (he
13. A belligerent was to be represented at all times. If this would imply an additional member,
one of the judges not of a belligerents nationality was dropped by lot (Art. 16).
NILR_2007-2-CS2.indd 210 8/2/2007 10:32:14 AM

was soon nicknamed Verbosa) adamantly insisted on full equality for all, to the
point of precluding all compromise.
The Prize Court was not to be.14 Yet from its debate it was justly distilled
that the idea was gaining ground and its implementation a matter of time only,
subject to the creativity applied to procedural matters. As appreciated by British
delegates, here was the Conferences most remarkable achievement and the first
glimpse of an international court ever seen by the world.
2.2.2 Restrictions on the right of capture in maritime war (Convention

XI)
Meanwhile, within Martens Fourth Commission, debate on a prospective mari-

time code for the Prize Court to base its deliberations on made little progress. A
first bone of contention presented itself in the capture of enemy private property
(ship and cargo). Deemed perfectly legitimate by the then standards of interna-
tional law, already in 1899 the US had contested the issue, which was close to
its heart. In 1907 Choate, in an impressive speech, quoting Cobden, Stuart Mill
and Gortchakoff, forcefully reiterated this US crusade to render privateering an
anachronism.
Latin-American protest was fierce. Colombia called privateering the natural
defence of the weak, equating naval war to brigandry writ-large. France and
Russia argued that the capture of property had often proved an eminent means
of coercion, indeed a deterrent of war. Belgium suggested a compromise, till
staunch British opposition wrecked the proposal. Remindful of Elihu Roots
instructions never to press anything to the point of irritation, Choate rested his
case.
Meanwhile, the debate prompted Britain to advocate the abolition of the
seizure of neutral ships for carrying contraband as being an antiquated notion.15
It opened a prolonged, vehement, yet abortive debate. The small nations hailed
the proposition, but most great powers, spearheaded by Germany and the US,
suspected a hidden agenda, never trusting perfidious Albions championship
of neutral powers, also in view of its opposite stand in matters of blockade,
mines, and the transformation of warships.16 France mediated by proposing a
list of items of absolute contraband, granting neutrals the right to trade all cargo
14. The conundrum would preoccupy lawyers and diplomats for the next full decade, notably
at London. The Prize Court aborted as ratifications failed.
15. Visitation of modern large ships, Britain argued, was extremely time-consuming, and
contraband ever harder to discover or indeed to define, inasmuch as the proper functioning of
modern fleets was dependent on forage for peaceful and military purposes alike; the distinction
between absolute and relative contraband was obsolete. The same held good for continuous
voyage. Supplies allegedly destined for neutral countries were easily railed towards neighbouring
belligerents.
16. Abolition of prize law, Germany argued, wrecked the balance of power in favour of
Britain. The prohibition of contraband was a fundament of self-defence.
NILR_2007-2-CS2.indd 211 8/2/2007 10:32:14 AM

not listed. Martens summoned a comit dexamen which, upon examination,

only concluded upon the role of national bias in precluding compromise. The
French listing of absolute contraband was adjusted, but one never agreed on
relative contraband in relation to the blockade of ports, and this wrecked the
proposition.
Still, several other issues regarding the right of capture touched upon did
have their impact on the law. Prominent among these was the seizure of mail
boats (Arts. 1-2), and the visitation and search of neutral vessels. In the absence
of codes or ad hoc treaties among belligerents, serious incidents had occurred
during the Spanish-American, the Anglo-Boer and the Russo-Japanese war.17
It was agreed that no necessities of war counterbalanced the prejudice to
commerce. Whereas mailboats were subject to maritime law, all mail, except
that to and from a blockaded port, was sacrosanct.
Similar considerations prevailed with respect to coastal fishery boats and
vessels reserved for humanitarian or scientific purposes (Arts. 3-4). It was
convincingly argued that seizure, while entirely ineffective as a means to harm
the enemy, was extremely detrimental to innocent individuals concerned.
However, innocence should never be compromised by ruses of war, a
remindful echo of the Dogger Bank incident. Finally, in an important change of
law proposed by Britain and Belgium, officers and crew of captured merchant-
men pursuing exclusively commercial goals whether nationals of neutral
powers or of belligerents were not to be treated as prisoners of war, subject
to their promise not to engage in hostilities (Arts. 5-8). Here, for the first time,
the distinction between combatants and non-combatants was extended to naval
warfare.
2.2.3 Status of enemy merchant-ships at the outbreak of hostilities

(Convention VI)
Another reputedly vexed issue was the laying of embargoes on ships in antici-
pation of war. Ever since the Crimean War custom came to prevail, upon the
proclamation of war to allow enemy ships some days of grace for unloading
and loading. Interpretation of the principle varied considerably, ranging from
30 days by France in 1870 (or the US in 1898) to a minimal 48 hours by Russia
in 1904, as against a week by its opponent, Japan. While deficient in terms of
consistency or reciprocity, the concession figured as token of good faith, to
adapt the necessities of war to the interests of commerce.
What Martens proposed in 1907 was to turn this act of grace into a right
and allow merchant ships a sufficient period to take refuge at home or with
17. In July 1904, the Russian cruiser Smolensk confiscated mail from the German mail boat
Prinz Heinrich and stopped the steamer Persia to take over the mailbags. Higgins, supra n. 1, at
p. 402.
NILR_2007-2-CS2.indd 212 8/2/2007 10:32:14 AM

neutrals. The proposition never met with unqualified support. Thorny impli-
cations such as continuous voyage, visitation on the high seas, pretence of
ignorance, and the furnishing of passes were discussed at length. Through
French intervention, the delay of favor, if not turned into a right, was agreed
upon as desirable (Art. 1).18 The major limitation of the Convention as
adopted concerned the exception of what the Austrian diplomat Lammasch had
nicely called hermaphrodites: merchant ships that were easily converted into
cruisers and battleships (cf., Art. 5). This complex issue was the subject of the
next Convention.
2.2.4 Conversion of merchant-ships into war-ships (Convention VII)
While the 1856 Paris Declaration intended to do away with privateering, the
abuse had re-entered through the backdoor. Prussia was probably first, in its
contest with France in 1870, to summon shipowners and sailors and have
volunteer ships placed under naval discipline. Russia took the idea a step further
by introducing Patriotic Associations of sailors to reinforce its small Imperial
Navy. The concept was institutionalized and subsidized, then inspired France to
adopt the formula for mail boats. Britain in turn addressed its steamship compa-
nies (Cunard, White Star) and had liners built under Admiralty supervision to
facilitate their speedy conversion into warships; it drew part of their crew from
the navy reserve. The US soon followed suit.
Incidents were bound to occur from this blurring of categories. In 1904, in
the midst of war, Russian merchant vessels crossed Dardanelles and Suez Canal
(barred from warships under international treaty), then once in the Red Sea
hoisted the navy flag and laconically captured a mailboat.19 The Conference was
faced with seven propositions, none of them suggesting a prohibition tout court.
It had little trouble in curtailing practices that breathed privateering, and strictly
defined terms of conversion (Arts. 1-6), but wisely concluded that conver-
sion per se was not illegal. The question was, as Lord Reay observed, how to
define warships. All ships came in handy for direct war purposes, inasmuch
as modern fleets required auxiliary vessels, friendly or neutral, for supplies
and ammunition. Other thorny questions concerned the duration, method
and place of conversion, notably inside neutral waters. Conflicting political
interests precluded unanimity and the adoption of a satisfactory regulation.20
18. The US considered this a highly reactionary compromise and abstained from voting.
19. Higgins, supra n. 1, at pp. 314-315.
20. Six rules were adopted, with US abstention on account of its stand on principle regarding
private property. In London, the problems proved equally insurmountable.
NILR_2007-2-CS2.indd 213 8/2/2007 10:32:14 AM

2.2.5 Adaptation of the principles of the Geneva Convention to maritime

war (Convention X)
In 1868 mostly abortive attempts were made to have the humanitarian prin-
ciples that governed the 1864 Geneva Convention adapted to naval warfare.
The domain had remained virtually tabula rasa until the 1899 Conference dealt
with the issue. In 1906 the 1864 Convention had been upgraded in Geneva, and
it was now the task of the 1907 Conference to upgrade the work of 1899 on
naval war in that light. Its Third Commission availed itself of the 1904 Hague
conference on hospital ships, of the competence of Renault, the 1899 pioneer,
and of propositions made by Germany, France and the Netherlands. It enlarged
the 1899 Convention from 14 to 26 articles, elaborating the rights and duties of
military hospital ships equipped by states (Art. 1) and by individuals or relief
societies of either belligerent or neutral powers (Arts. 2-3). These were stub-
born issues and abuse lurked around every corner. Able men were transported
under the veil of sick and wounded; the latter, while first seeking shelter, after
recovery eagerly took up arms. Reputedly, in 1905 the Russian hospital ship
Orel had accommodated able-bodied prisoners and subsequently assisted in
hostile operations.21
The Commission felt forced to enter into much detail. It amply discussed
flags and distinguishing marks of hospital ships (Arts. 5-6).22 In this, again, it
was spurred by ample abuse in recent wars.23 Warships of belligerents, it was
decided, were at all times entitled to reclaim shipwrecked from hospital ships
(Art. 12), whereas neutral ships were held to detain shipwrecked to prevent
their re-entering service (Art. 13), a stipulation triggered by irregularities in the
Russo-Japanese war. Above all, the inviolability on principle of staff of hospital
ships and of sick and wounded was firmly established. However, as Renault
wisely observed, the strictest observance of rules by hospital staff themselves
was vital to their own functioning and that of the Convention.
2.2.6 Bombardment of undefended ports, towns, villages, dwellings, or

buildings (Convention IX)
Rejected by Wellington as uncivilized, yet widely acclaimed throughout the

19th century, naval bombardments were for the first time seriously discussed
by the Institut in 1896. Its rules were adopted in the 1900 Naval War Code of
the US, whose delegation introduced the subject-matter (a left-over from 1899)
21. Higgins, supra n. 1, at pp. 385-386.

22. As in 1899, instead of the cross, Persia claimed the sun or lion and Turkey the crescent.
23. Hospital ships carrying lights at night might betray the presence of a fleet; warships, mak-
ing illicit use of lights, make their escape from danger. The incident of the British yacht Deerhound
was recalled, which in 1864 picked up 41 crew-members from the infamous Alabama under the in-
violability of the neutral flag.
NILR_2007-2-CS2.indd 214 8/2/2007 10:32:15 AM

in 1907. It recommended the ban on bombardment of unfortified coastal town-

ships indiscriminately, including for reasons of collecting ransom. The political
context of this proposition, clearly, was the prolonged Venezuelan incident.
The Third Commission defined the term undefended and concluded that
mines did not affect that status (Art. 1).24 Also examined was the time a naval
commander should allow authorities to dismantle their defence before bombar-
ding, in its relation to military exigencies (Arts. 2-3, 6). Bombardment for
non-payment of debts was explicitly forbidden (Art. 4). The US proposition,
which had an essentially tentative character, carried through. It also stipulated
that historic monuments and buildings devoted to religion, science or art, if
properly marked as such, were to be spared wherever possible (Art. 5). Interest-
ingly enough, the landing of troops was never discussed.
2.2.7 Laying of automatic submarine contact mines (Convention VIII)
The deadly effectiveness of yet another new instrument of war, mines those
demons of the deep which, anchored or floating on the waves, exploded auto-
matically by contact had been amply revealed by the Russo-Japanese conflict.
Mines had proven uncontrollable weapons. Floating into Chinese waters, they
had made hundreds of innocent victims and had required years of sweeping.
By the same token, they were a relatively cheap way of defence for states with
a small navy, and neutrals readily applied them to demarcate their territorial
sea. In 1906, the Institut seriously addressed the problem. The 1907 Confer-
ence, appreciating the urgency, scrutinized the extremely complex issue, which
provoked vehement debate.
Britains proposition, supported by China, was to forbid all mines except
within (friendly or hostile) territorial waters or in front of naval forts. Italy
claimed exemption for mines that were rendered harmless within an hour of
their launch, while the Netherlands and Brazil reserved the use of anchored
mines in defence of their neutrality. After two months of debate a committee
decided on principles which were expressed in special rules deemed far too
wide by Britain (if too strict by Germany), yet adopted unanimously for a period
of seven years. Mines of any type that were not rendered harmless (or torpe-
does that ran loose) were strictly forbidden (Art. 1), and so was the laying of
mines along enemy coasts with the sole purpose of intercepting commerce (Art.
2). These rules also applied to neutrals (Art. 4).25 Belligerents were obliged to
remove their mines after the war (Art. 5).
24. Overruling British protests, mines (contrary to bombardments) were defined as elements
of passive defence.
25. Germany proclaimed that her navy, where no rules applied, strictly complied with the du-
ties emanating from the unwritten laws of humanity and civilization.
NILR_2007-2-CS2.indd 215 8/2/2007 10:32:15 AM

2.2.8 Rights and duties of neutral powers in maritime war (Convention

XIII)
This Convention was projected to mirror Convention V for war on land. The
position of neutrals in naval war was first seriously addressed in the 1856 Paris
Declaration.26 If, in the previous decade, three wars had amply demonstrated
Paris inadequacy,27 1907 revealed the persistent controversy of thought. Propo-
sitions made by Russia, Japan, Spain and Britain bespoke their contradictory
traditions and perspectives. They reflected geographical and technological bias
rather than the widely proclaimed humanitarian principles.
Debate went on for three months. Propositions were comprized in an elabo-
rate Questionnaire, from whose examination emerged the guiding principle of
unequivocal respect for the sovereign rights of neutral powers (Art. 1), a duty
countered by the requirement of strictest impartiality on the part of the latter
(Arts. 9, 25). Thus, for their waters and territory to be held inviolable, duties as
well as rights ensued for neutrals. It was established28 that a prize taken within
the territorial waters of a neutral power was to be released to it and interned.
When no longer within its waters, the prize should, at the neutral powers
express demand, likewise be surrendered (Art. 3).
The use of neutral territory as a base for belligerent operations, for installing
radio stations, reinforcement, the taking in of supplies, or the fitting out of ships
was not just prohibited but indeed not to be tolerated by neutral powers (Arts. 5,
17-20). The same held good, in line with old usage, for the establishing of prize
courts on neutral territory or aboard ships in neutral waters (Art. 4). Innocent
passage of warships and prizes was not deemed to affect neutrality (Art. 10),
a rule that was very pertinent to international straits, as an 1894 Report of the
Institut had pointed out.
Articles 13-14, on the length of stay in neutral harbours, was triggered by
the alleged abuse of Chinese hospitality by the Russian gunboat Manjur that
had refused to leave Shanghai port with a Japanese cruiser lying in waiting, and
was finally dismantled on the spot.29 Again, twice after decisive Japanese naval
victories, no longer seaworthy Russian cruisers had taken refuge in Manilla and
German and American ports for repairs. Article 15 concluded upon leave within
24 hours from any port in the immediacy of the war theatre, or internment for
the full duration of the war (Art. 24).30
26. The 1871 Anglo-American treaty of Washington best represented diplomatic practice of
the period.
27. The Spanish-American (1898), Anglo-Boer (1899-1902) and Russo-Japanese War (1904-
1905).
28. With reference to cases like that of the General Armstrong (1814), the Florida (1864), and
the Ryeshitelmi in the Russo-Japanese conflict. See Higgins, supra n. 1, at pp. 462-463.
29. Higgins, supra n. 1, at p. 471.
30. Detailed rules were elaborated in case ships from both parties were calling in neutral ports
simultaneously (Art. 16).
NILR_2007-2-CS2.indd 216 8/2/2007 10:32:15 AM

Compromise was the keyword of the Commissions dealings and the

Convention at best the opening move of a delicate chess-game. Many, while
applauding the achievements, readily admitted that the loopholes for abuse were
legion. Still, experts agreed that the Third Commissions accomplishments by
far outweighed Martens Fourth. The latters abortive debate on contraband was
deemed a most unfortunate failure. Inconsistent state practice, widely diver-
gent doctrine and the clashing interests of the great naval and smaller neutral
powers had forestalled all compromise. From British perspective, success had
been frustrated by the small fry. It conditioned its ratification of the Prize
Court to prior agreement on blockade and, not prepared to await another Hague
Conference, invited the major naval powers to a conference which took place in
London in 1908-09.31
2.3 Peaceful settlement of disputes
The foremost pride of the 1899 Conference and the celebrated Comit dExamen
of its Third Commission had been the Convention on the Pacific Settlement of
International Disputes which had established the PCA. By 1907, revision of that
Magna Charta of International Law and Keystone of the Arch of International
Justice, to recall the flourishing phraseology of the day, if warmly advocated
by some, was seriously challenged by others. Many held that, in view of the
small interval of time, in order to enlarge the Empire of Law, in substance not
much could be gained and in goodwill possibly more lost from the mere
repetition of that fierce debate at the Salle des Trves. These commentators
probably had wisdom on their side.
Still, much had happened within those few years. Bilateral arbitration treaties
were in the air, on both sides of the oceans. Maybe, as some advocates of the
idea (ominously) intimated, some general conclusions should be drawn from
this circumstance. Martens himself, predictably, was not alien to this. After two
years of idleness, the PCA had definitely come into its own. Martens other
brainchild, the commissions of inquiry, had even gained a spectacular prize.
However, the PCA had not been an unqualified success. Much dissatisfaction
was voiced over its procedure. Practice, much more than theory, commanded
the 1907 debate.
2.3.1 Pacific settlement of international disputes (Convention I)
In 1907 the First Commission, elegantly chaired by Lon Bourgeois, confidently

addressed the 1899 Convention. To reflect its openness, the term signatory
31. The 1907 Conference did not agree on a codification of the law and withdrew upon gen-
erally recognized principles of international law (Art. 7.2). In London, rules proposed lent a legis-
lative character to its 1909 Declaration. If signed by the attending nations, not a single ratification
had been received by 1914; in the House of Lords the Declaration was voted down.
NILR_2007-2-CS2.indd 217 8/2/2007 10:32:15 AM

was replaced with contracting parties (Art. 3). At the instigation of the US,
and reflecting grown confidence, the offer of services (such as mediation)32 by
third parties, previously suspect as a veiled unfriendly act but defined expe-
dient in 1899, was now rephrased expedient and desirable (Art 3).33
2.3.1.1 Commissions of Inquiry (Articles 9-36)
More incisive were the emendations regarding the Commissions of Inquiry. The
mere six articles of 1899 were extended to a full twenty-eight, all spurred by
the experience of the 1904 Dogger Bank incident. Tension had run high those
days; most likely, the Commissions intervention had precluded war. More
pertinent to lawyers, the incident had amply demonstrated the twilight-zone
of the mechanism. The 1904 Commission had created anomalies by distinctly
overstepping its mark in two fundamental ways. It had not just inquired facts
but had, as against Article 14, also pronounced on responsibility and had appor-
tioned blame. Martens was quick to exploit this experience in proposing, to no
avail, the commissions duty of fixing responsibility.
More interesting still, the Commission had with impunity, indeed without so
much as formal protest, addressed a dispute which unequivocally involved the
honour and vital interests of states, expressly excluded from its competence
by Article 9. The logical consequences of this fundamental expansion were
cleverly probed too still, again to no avail. Nor were the nations charmed by
Martens proposal to follow up the verifying of facts with its natural sequel,
recourse to the PCA. Every semblance of obligation, delegates felt, might
compromise the mechanism. Commissions had a strictly factual mandate
without binding verdict or legal consequences to parties. These were ominous
conclusions for 1907 aspirations to overcome that major stumbling block of
1899 and turn arbitration into an obligatory mechanism.
2.3.1.2 General arbitration treaty (Articles 37-40)
No less than 33 bilateral treaties of restricted obligatory arbitration concluded

since 1890, and the fairly new phenomenon of unrestricted obligatory arbitra-
tion treaties34 quite naturally suggested the consideration of a multilateral or
even general agreement of the kind, thus to enhance the moral prestige of the
mechanism. The word general in itself was a nice trouvaille to avoid obliga-
tory. Lon Bourgeois was the ultimate champion of the idea. Britain welcomed
the principle as the collective expression of the conscience of the civilized
32. The distinction between good offices and mediation, upheld by commentators at the time,
was not honoured by the Commission.
33. Art. 7 stipulated that mediation should not interfere with mobilization.
34. As concluded those years by Denmark with Holland and Italy, and by Chile with Argen-
tina.
NILR_2007-2-CS2.indd 218 8/2/2007 10:32:15 AM

world, a position voiced by Sir Edward Fry, a convinced quaker, to ingra-

tiate public opinion. Still, Germany was not fooled and, while advocates of the
idea entreated that no vital interests, independence or matters concerning third
parties were involved, it firmly rejected any suggestion of the kind.35 Bourgeois
did his utmost to coax Marschall, as Cambon pleaded with Von Blow at the
Wilhelmstrasse. In the end, only the Dominican Republic adhered uncondi-
tionally to universal obligatory arbitration as reflecting the spirit of the Rio
Conference (1906).
The idea was dropped and attention shifted to more modest schemes. Various
nations advocated unrestricted bilateral agreements or proposed a general oblig-
atory agreement restricted to various classes of disputes. Some insisted on
agreement on the most harmless categories, if only to please their electorate.
In the end, attention focussed on a specific list of cases submitted by Portu-
gals Marquis de Soveral. This inventory was based on a model treaty adopted
in 1906 by the IPU in London. The near-endless list amounted to classes of
dispute which, one way or the other, concerned the interpretation and applica-
tion of treaties.
What followed was a traumatizing debate over definitions, put to the vote
item by item during a full four weeks. Some nations shirked from adhering to
any general treaty, others aspired precisely at adopting a treaty embodying a
general rule or, as advocated by the US, for judicial differences. Some feared
that failing ratification by national legislative bodies would render Hague signa-
tures null and void, whereas others clung to sacrosanct honour, independence
and vital interests, and emphasized that an empty world treaty would merely
disqualify the instrument and jeopardize genuine obligatory arbitration.
In spite of all learning, insights in comparative law and resourceful-
ness displayed in successive rounds of truly titanic debate, the all too knotty
problems, if mustering a handsome majority, were never harvested into una-
nimity. Arbitration was confirmed as the most effective and most equitable
form of dispute settlement (Art. 38). Still, the principle of obligatory arbitration,
still widely ridiculed in 1899, was no longer contested.
2.3.1.3 Permanent Court of Arbitration (Articles 41-50)
Evaluation of the role and record of the PCA entailed a curious mixture of pride
and dissatisfaction. Having been embarrassingly ignored in the Anglo-Boer
conflict, the Courts premises (not its mechanism) had been inaugurated in 1902
with the Behring Sea hearings. Hence, no less than four cases had come its way,
and the experience gained prompted much comment. A first bone of contention
concerned the choice of arbitrators. By analogy of the principle nemo judex in
35. Stirring general amazement, Belgium, possibly hoping for support of its Congo policy in
exchange, backed Germany, to find its delegate Guillaume nicknamed Guillaume Deux.
NILR_2007-2-CS2.indd 219 8/2/2007 10:32:15 AM

causa sua, it was advanced that no national judge should serve on a bench.36
However, as was riposted, appliance of this principle wouldnt exactly ingra-
tiate the institution with sovereign states, never too keen to rely on external
actors. An elegant compromise was found in inviting parties to appoint two
arbitrators, one of which only of its nationality or from among the four persons
nominated in its national group (Art. 45). A similar compromise was reached in
case of failure of agreement on the choice of umpire: parties at variance could
suggest two candidates, and the drawing of lots would settle the issue.
A distinct step forward in the moral domain concerned the new Article 48.
In its prior version (Art. 27) it stipulated the duty of third parties to direct
attention of disputants to the existence of the Court. This duty had never
been observed, clearly, as Japan argued, because any power would think twice
before putting its finger between the hammer and the anvil. Pursuant to Article
48, adopted on the initiative of Peru and Chile, a power at issue was entitled to
communicate its willingness to help arbitrate directly to the PCA; the Bureau
would then contact the other power.
2.3.1.4 Arbitral procedure (Articles 51-85)
In the Pious Funds and Venezuelan Loans cases arbitrators had faced procedural
entanglements. Was the chosen umpire by right also to become the President
of the Tribunal? The choice of languages had posed problems, translations
had caused much delay, which in turn raised the matter of cost of proceed-
ings.37 The IPU, the Inter-American Conference and even the Lake Mohonk
conferences all had commented unfavourably on the financial aspects of PCA
procedures. Already journalists had sneered that continuing the armaments race
might be less expensive after all! All these matters had better be elaborated in
the compromis.
More pertinent perhaps had been the quarrel in the Venezuela case over the
appointment of agents and counsel. Britain had challenged the appointment by
France of Louis Renault, arguing that PCA members compromised their impar-
tiality by functioning one day as arbitrator, the next as agent. Agreement was
reached on a German proposition to restrict the use of Members as agents to
the powers that had appointed them (Art. 62). The Netherlands challenged the
signing of the award by all members of a tribunal and the arbitrators right to
the statement of dissent which, it argued, undermined the principle of finality of
the award. It was decided, along lines of the British Privy Council, that only the
36. In no case up to that point, the Pious Funds, the Venezuelan Loans, the Japanese Loans, or
the Muscat Dhows, nationals of parties had served.
37. Following uncertainties in hearing witnesses, Anglo-Saxon procedure of cross-examina-
tion was dropped in favour of the less confronting continental usage of questioning by the presi-
dent alone.
NILR_2007-2-CS2.indd 220 8/2/2007 10:32:16 AM

President and Registrar signed the award, stating its reasons, and that no dissent
was to be expressed (Art. 79).
This discussion renewed the most vexed issue of 1899: revision of the award.
In the Salon des Trves, polemics as to whether arbitration was to serve peace
or justice had run high. In 1907, Martens, the staunch advocate of its finality,
repeatedly crossed swords with Barbosa. In the end, in 1907 as in 1899, the
view prevailed that, inasmuch as arbitration was a voluntary process, no condi-
tions should be imposed on parties (Arts. 81-83). A last important innovation
designed to help facilitate the system was the devise of arbitration by summary
procedure (Arts. 86-90). Admittedly, few of the above emendations touched
upon the principle of arbitration. If, by virtue of accumulated experience, the
plot had thickened in terms of procedure, no tangible political progress was
made. Still, debate did not stop here. The following, abortive but highly in-
triguing propositions illustrate that an international judicature was steadily on
the rise and that lawyers were busily sharpening their wits to oblige.
2.3.1.5 Court of Arbitral Justice
The shortcomings of the PCA system were felt by many to hamper the develop-
ment of a solid, consistent body of international law. The institution, at the end
of the day, was neither a court nor permanent. Its cases were isolated occur-
rences, dealt with by different panels, separated in time and disconnected in
subject-matter. Lack of continuity and consistency impaired an institution
whose expenses (to be borne by parties) were extravagant, inasmuch as, on each
and every occasion, the whole machinery was started afresh. In short, what was
required was a real court warranting permanency of organization, consistency
of jurisprudence, and impartiality of arbitrators. As the PCA was competent to
deal with disputes of a judicial nature, such as the interpretation of treaties, a
permanent bench of competent lawyers (rather than diplomats) imposed itself,
who based their decisions on law, not bargaining.
To that purport drafts for a Court of Arbitral Justice or Judicial Arbitral
Court were developed by Russia and the USA, bodies envisaged to deal with
arbitral procedures, special tribunals, and commissions of inquiry alike. What
Russia proposed was essentially a refurbishing of the PCA. National Groups
would assemble annually in The Hague and from their midst select three
judges to stay ready at hand at the Bureau that year. The US felt differently.
It proposed the supplementing (not supplanting) of the PCA with alternative
means of recourse projected along lines of the 1897 Olney-Pauncefote drafts:
a permanent body of fifteen judges, nine making a quorum, to be appointed by
the Highest Courts of the nations.38
38. Barbosa vainly militarized for the suppression of the PCA. Beernaert made the sound point
that the body of permanent judges proposed by the US invalidated the free right of choice in-
herent to the idea of arbitration. He called the idea of a World Court a dangerous utopia.
NILR_2007-2-CS2.indd 221 8/2/2007 10:32:16 AM

As the proposed name (International High Court of Justice) confirmed,

the institution was about to be upgraded from the plane of diplomacy onto that
of genuine judicature. A joint American-British draft was adopted as basis for
discussion. It proposed a bench of seventeen salaried judges and deputy-judges
representing the various judicial systems of the world, and appointed for terms
of twelve years. The idea met with little opposition. Still, when it came to the
criteria for selection and representation of judges, all legal genius was trapped
into a cul-de-sac.
The eight great powers claimed permanent representation, but then, so did
the small ones, protesting their full equality. Problems of logistics which had
jeopardized the Prize Court resurfaced. It was proposed to have small states
occupy the nine remaining seats by rotation for periods of one to four years
depending on certain criteria; to implement a regional assignment; to have each
state cast a vote for a prescribed number of judges; finally, to have each state
submit its candidate for a judge and deputy-judge to the Hague Bureau, have
the nations vote 15 judges and 15 deputy-judges and decide draws by lot.
Once more, Barbosa was adamant and, heading Latin-American opposition,
almost single-handedly wrecked all compromise in a brilliant address,39 which
drew much support.40 The political tussle left delegates with the eery feeling
that, whatever its composition, an International Court would necessarily be of a
different kind entirely from national High Courts. Amidst protest and confusion,
the Conference by resolution withdrew to adopting the Court as agreed upon,
subject to the solution of the riddle on the selection of judges. Delegates felt
they had been a hairbreadth removed from creating a first ever global judicial
body, only to find the small powers readier to run the risks of war with great
powers than bow to them in court.
Disillusion over the unique opportunity missed was ubiquitous. In the short
run, this analysis was right: nothing had changed really. The PCA did not suffer
from the disappointment. In November 1908 the compromis of the Casablanca
case was signed, the first under the revised Convention, by then adhered to by
43 nations. Two months later the North Atlantic Coast Fisheries case followed
suit. In the long run, the 1907 debate would prove far from abortive or, as
Bourgeois had predicted: the tree is blossoming, the harvest will come for
life precedes the law.41 In 1920, to the Committee of Jurists assembled in the
Peace Palace, the 1907 Report would prove a welcome shortcut when traversing
39. Rumour had it that Barbosas candidacy for the presidency of Brazil called for his show-
off.
40. Barbosa felt such a Court could in no way be beneficial to small states. Later on it was es-
tablished that, simultaneously, Brazil had insisted in Washington on a Court of 21 judges, securing
a permanent seat for itself.
41. Ironically, that very year, the Court of Arbitral Justice that was voted down by Barbosa
c.s. was established on a regional level, in Cartago in Costa Rica, to serve the Central-American
republics.
NILR_2007-2-CS2.indd 222 8/2/2007 10:32:16 AM

political and procedural minefields. They emerged triumphant, brandishing a

Statute for the PCIJ whose phraseology, to veterans like Bourgeois, felt like
balm to their souls.
2.3.2 Limitation of the employment of force for the recovery of contract

debts (Convention II)
The 1902 blockade of Venezuelan ports by German, British and Italian

warships, the subsequent seizure of its fleet and bombardment of coastal
townships had an incisive impact on interstate relations, and repercussions
throughout the New World. In December, Argentines Foreign Minister Drago
voiced the concern of the Latin-American World. In his view, the obligation
of payment of public debts was never contested. In the case of Venezuela,
however, and owing to revolution and social change, the debtor country seemed
entitled to at least some latitude in paying instalments before being incriminated
of bad faith and deliberate insolvency and face downright war. 42 Jeopardizing
stability and peace on the Continent, the actions of the allied powers were seen
as blatant infringement of the 1823 Monroe doctrine and the more than likely
forebode of a Scramble for the Americas under the veil of financial interven-
tion.
In 1904, pursuant to Dragos doctrine, Roosevelt formulated his famous
Monroe Corrollary and Big Stick policy. The 1906 Third Pan-American
Conference in Rio, appreciative of diverging doctrine and ambiguous inter-
national practice, recommended submittance of the issue to the 1907 Hague
Conference. Honest debtors should be protected from military intervention,
honest creditors from feigned insolvency. At The Hague US General Porter
launched a frontal attack on speculators-adventurers in a warm plea for arbitra-
tion, also for the benefit of world trade. Recourse to force was to be reduced to a
means of last resort, conditioned by prior arbitration. Amidst adamant Venezu-
elan protest Drago, for once strongly supported by Barbosa, eloquently exposed
his views which excluded recourse to force unconditionally and unequivocally,
if only to help powerful states resist their ready temptation to occupy a small
country with large natural resources. After prolonged and careful examination
the more lenient US proposition carried the day (Art. 1).
42. Venezuela would have fared far better by relying on arbitration. A 1903 Mixed Commis-
sion honoured but a fraction of the claims submitted by the Allies.
NILR_2007-2-CS2.indd 223 8/2/2007 10:32:16 AM

3. AFTERMATH
In advocating a general arbitration treaty and international prize and arbitration

courts, and in institutionalizing the Conference idea,43 in 1907, in an altogether
natural process, a first if perhaps only semi-conscious effort was made to estab-
lish a Hague System of World Organization. One way to implement this was
to relieve Russia of its prerogative and exclusive sponsorship of the Confer-
ence, and this is what US and British delegates, courteously yet relentlessly,
accomplished. Still, whatever the aspirations in the long run, Realpolitiker did
not allow any future World System to interfere with their immediate concerns.
In 1907, Germany, Britain and the USA opened a new era of naval competition
by upstepping their fleet programs. In years following, a cavalcade of crises
in Turkey, Bosnia and Morocco tore the fabric of Europe apart, issuing in the
Turko-Italian and Balkan Wars.
At the same time, the advocates of courts drew new inspiration from the
1908-09 London Naval Conference.44 In March 1910, Scott, Renault, Crowe
and Kriege, meeting in Paris to help implement the Prize Court, also agreed on
a draft for the Arbitral Court of Justice which was revised in The Hague in July.
Unfortunately, the one court was conditioned by the other. Reluctance of the
powers to ratify the 1909 London Declaration45 effectively delayed both courts
for years on end.
Meanwhile, at The Hague, the PCA was almost embarrassed with an
overload of cases, even if the fairly modest reach of most disputes duly reflected
the narrow perimeters of the Courts dealings. Among the ten cases submitted
prior to WW I, the 1909 Casablanca takes pride of place in having possibly
forestalled another Moroccan crisis. Here, with the national honour of Germany
and France eminently at stake, reason prevailed. Three Franco-Italian arbitra-
tions issuing from the Turkish-Italian War concerned the seizure of merchant
ships. Here, ironically, the PCA acted as a substitute International Prize Court.
The most inspiring thoughts regarding the Hague System were developed
across the ocean. In 1911 President Taft launched his Arbitration Treaties. In
June 1912 he appointed an American Preparatory Committee for the Third
Hague Peace Conference, envisioned for 1915. In Fall 1913 it submitted a
report to President Woodrow Wilson, urging for the strengthening of the Hague
43. The term set for the next Conference (within a corresponding period), was interpreted as
1915.
44. In 1908, the great naval powers, in well-organized and perfectly amicable rounds of talks,
reached agreement on the vexing issues of blockade, contraband and continuous voyage, and the
sinking of neutral prizes. In February 1909 they drew up the London Declaration comprizing 70
articles.
45. For one thing, the naval powers deemed the London texts partial toward neutrals.
NILR_2007-2-CS2.indd 224 8/2/2007 10:32:17 AM

Court, law codification and limitation of armaments. The USA, most decisively,
took the lead in the Oeuvre de la Haye.46
Upon Wilsons election, the Hague advocates had not exactly entertained
high hopes. To start with, Wilson hated lawyers with a vengeance. The appoint-
ment of William Jennings Bryan as Secretary of State and John Bassett Moore
as legal counsel rekindled the flame. In 1913, Bryan drew up what he optimis-
tically called The Presidents Peace Plan, establishing a network of arbitration
treaties that provided for international commissions of investigation wherever
diplomacy failed to solve a conflict. Scott and Root (who was awarded the 1912
Nobel Peace Prize) in January 1914 coaxed Bryan into dispatching a circular
letter suggesting the use of the PCA Administrative Council as preparatory
committee for a Hague Conference at the call of Queen Wilhelmina. In The
Hague, reaction was lukewarm. One much preferred a technical committee
and consulted Russia. The Committee was launched the very days shots rang
through the streets of Sarajevo.
Late July 1914, following the Austrian ultimatum Serbia, in a last effort
to avert war, and supported by the Czar, proposed to have the reasonableness
of Austrias relentless demands tested by the PCA. The idea was wrecked on
German-Austrian stubbornness. Lord Greys call for an emergency Concert
of Europe went the same way as, in the eyes of der Kaiser, these ideas all
amounted to the same. In an ultimate effort, Wilson volunteered his personal
mediation under Article 3. This offer, too, was politely but resolutely declined.
A matter of days later, with the deployment of the Von Schlieffen plan, the
nation that, forty years before, had first welcomed internationalists to Brussels
to draft a code of war, was the first to suffer from its most blatant violation.
For four years on end, the Hague Conventions, each and all of them, and
whether taken to the letter or spirit, were trampled underfoot indiscriminate-
ly as a daily routine.47 Most cynical perhaps, Belgian concerns in 1899 over
the position of civilians in invaded territory from which the Martens Clause
issued proved visionary. In 1914, appalled reaction worldwide to that epitome
of brutality, the burning and ransacking of the legendary treasures of Louvain
University Library, was casually brushed by Wilhelm II as an act of self-
defence provoked by civilian snipers.
No element was spared. The very first month of the war Zeppelins dropped
bombs on the unfortified city of Antwerp. The next spring, at Ypres, blinding
clouds of mustard gas disfigured men for life. On the high seas belligerents
congratulated themselves on the absence of an International Prize Court and
their delay in ratifying the London Declaration, abusing formal loopholes as
pretext for moral failure. If Britain refrained from blockading German harbours,
from impotence mostly, it did seize merchant ships and cripple commerce on
46. For European endeavours see Grossi, supra n. 6, at pp. 320-349.

47. The ironical exception was the Third Convention. On August 2, Germany started a carrou-
sel of formal declarations of war.
NILR_2007-2-CS2.indd 225 8/2/2007 10:32:17 AM

the title of continuous voyage. Still in 1914, belying its stand in The Hague,
Britain doubled the list of items of absolute contraband and made no bones of
intercepting mail.
Germany proudly opened a new chapter of vice unconditional submarine
warfare torpedoing merchant ships and men-of-war indiscriminately, hostile
and neutral ones alike. Britain, retaliating, in July 1916 declared itself no longer
bound by the London Declaration. Germanys utter contempt for codes and
regulations made the USA enter the war. But then, that nations first act, in
defiance of the Sixth and Eighth Conventions, was to confiscate German ships
anchored in its harbours and cover the oceans with minefields on an unprece-
dented scale.
As the Wheel of War turned against her, Germany was first to turn to the
Dutch Foreign Ministry to help conclude peace in The Hague. In the days of
the Armistice Carnegie drew Wilsons attention to the Hague Tradition. But
the Peace Treaty that became Versailles could, by no stretch of imagination,
be put in the same category with 1899 and 1907. Still, the acknowledgement
that WW I could have been prevented through diplomacy or legal mechanisms
induced plans throughout the world to reinforce the Hague System or create a
world organization brandishing collective security to warrant peace. As early as
1916, Taft at Lake Mohonk recommended the founding of a League featuring a
Permanent Court, a legislative Congress and a collective security system, and
equipped with economic and if needs be military coercion.
In drafting the Covenant, mid-1918, the US administration was well advised
by Root to add a Permanent Court to the League machinery. Wilson, imbued
with the failure of the old order, initially gave little heed to this, entrusting the
new world order to diplomacy, public opinion and morality rather than the law.
However, by 1919, he gave in to British pressure, insisting that the small nations
abandon their Barbosa philosophy. In February 1919, the League Crillon
Commission set to work on the basis of Italian, French and British-American
drafts. Cecil Hurst, future President of the PCIJ, in his then capacity of Legal
Advisor drew up the famous Article 14, which secured the Permanent Court in
a draft Covenant saturated with belief in international law. In this way the link
between The Hague and the world of politics was secured. In conditioning
the decision-making of the new world legislature of Council and Assembly
to perfect unanimity of all member states the Covenant, in a less fortunate way
perhaps, only too clearly recalled the ideology of the so-called Hague Parlia-
ments of 1899 and 1907. Those months, Wilson and Lord Cecil also agreed on
the Advisory role of the Court-to-be.
In May 1919, Germany proposed a Court with obligatory jurisdiction,
open to individuals and states alike, and which recognized the principle of the
equality of states. Austria made similar propositions. To some this was not
enough. Old Lon Bourgeois, in successive rounds of vehement debate, fought
a bitter uphill campaign against an adamant Wilson to put the Hague Tradi-
tion, and nothing else, at the heart of the new world system. Never perhaps the
Legacy of the Hague Conferences was championed so fervently and tirelessly
NILR_2007-2-CS2.indd 226 8/2/2007 10:32:17 AM

as by this veteran diplomat who virtually identified his life with lOeuvre de La
Haye. In his final stand Bourgeois warmly yet vainly recommended The Hague
as seat of the League. Wilsons mind was firmly set on a clean slate and firm
break with the past.
His ideas backfired. They alienated him from the influential world of
pacifism in the US, which supported The Hague throughout. Facing a Senate
that, in great majority, deemed a World Legislature a bridge too far and much
preferred the strengthening of the Hague Conference System of Permanent
Court and progressive codification, he finally found himself out in the cold. The
tragic outcome was the renewed isolation of his nation. This side-lining of the
initiator of the League and world power on the rise crippled the League and
the World.
In January 1920, at the initiative of the League Council, a Committee of ten
prominent jurists drafted a Statute for the PCIJ. In July, and on the invitation of
the Netherlands that wished to secure the link with 1907, the Committee met
in the Peace Palace. It was made up, for the greater part, of former delegates
and future judges. Within weeks a draft Statute of 62 articles was submitted
which, in essence, serves the World Court to the present day. It was based on
the 1907 propositions for the Court of Arbitral Justice, the Convention of the
1907 Central-American Court, drafts by the IPU and the Union juridique inter-
nationale, projects prepared by individual scholars such as Walther Schcking,
and various national plans, such as the scheme developed by the 1919 so-called
Five Powers Conference of The Hague.48
The Jurists happily solved the riddle of the appointment of judges by
emphatically linking both worlds, that of The Hague and Geneva, of law and
diplomacy. Whilst the four representatives of signatory powers to the PCA
were to nominate candidates, the election of judges was entrusted to the League
Council and Assembly. If admittedly not all nations were to be represented,
great or small they all shared equal responsibility in the election. Sadly, in the
Third Committee of the Assembly, obligatory jurisdiction as proposed by the
Committee was victimized to the Great Powers.
In December 1920, the Statute was adopted by Council Resolution and the
Protocol of Signature opened. By separate protocol a novelty was introduced,
the brainchild of Max Huber of Switzerland intended to keep the obligatory
element into focus: the Optional Clause. On February 15, 1922, in a ceremonial
session in the Great Hall of Justice, Lon Bourgeois dream of 1907 finally
came true. If admittedly the US were not involved (as little as that other new
power, the USSR), among the judges elected was John Bassett Moore.
Nor had the US administration dropped The Hague altogether. In
November 1921, President Harding invited eight nations to a diplomatic confer-
48. Projects developed during the war in Scandinavia, Switzerland and the Netherlands were
on Swedish instigation submitted to a joint Conference in The Hague in February 1920 and incor-
porated in a draft scheme of 55 articles.
NILR_2007-2-CS2.indd 227 8/2/2007 10:32:17 AM

ence in Washington to discuss the limitation of naval armaments. Hardings

call for a ten-year moratorium in shipbuilding was honoured. And Washington
reached further: addressing the 1899 Declarations it generated treaties pro-
hibiting chemicals and gases and, reopening the debates of 1907 and 1909,
regulated submarine warfare. Last but not least, from Washington ensued the
1923 meeting of experts in The Hague that agreed on a first international code
for aerial warfare. Thus, in a last minute move, in the vestibule of the League
System, important unfinished business from the Legacy of The Hague was
upgraded and made presentable as a pragmatic tool to serve The International
Era.
***
Often ignored and ridiculed, the Second Hague Peace Conference was a unique
exchange of views at a moment of paramount interest for the history of Europe.
Its debate impeccably touched upon the sore of early 20th century interna-
tional society. Its failure to reach agreement on all too many vital issues had
dramatic consequences: 1907 proved the last stop of the nations on their head-
long race for Verdun. At The Hague, the die was cast. Prussian arrogance and
bigotry blew up what little credibility was left from under the system of Concert
and Balance. In London, where the Conference had been made critical to the
quandary of social reform or naval build-up, Grey readily made up his mind.
Hence, Lord Fisher and Admiral Tirpitz would have it their way. On the spur of
blatant imperialism, fervent nationalism and implacable antagonism the world,
in unstoppable cavalcade and bumping from crisis to crisis, in Morocco and
Bosnia, helplessly spiralled down towards the abyss. From this perspective, the
analysis of objectives and available options at that single ever meeting of nearly
all sovereign nations of a rapidly interlocking world before the constitution of
the League of Nations assumes historic dimensions.
NILR_2007-2-CS2.indd 228 8/2/2007 10:32:18 AM

Arthur Eyffinger A Highly Critical Moment Role and Record of The 1907 Hague Peace Conference

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NILR 2007 THE 1907 HAGUE PEACE CONFERENCE: ROLE AND RECORD 197

A HIGHLY CRITICAL MOMENT: ROLE AND RECORD OF THE 1907

1. Some preliminary notes

2. Substance of the Conference

rently director Judicap, The Hague.

Netherlands International Law Review, LIV: 197-228, 2007

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1. SOME PRELIMINARY NOTES

1. Literature on the Conferences is abundant. A comprehensive bibliography in Arthur Eyffin-

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1.2 Old thinking and new

Nineteenth century society, indoctrinated by the stern positivism of Von

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eminently served, indeed typified the essentially impromptu character of inter-

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The omnipresent terms conscience and civilization were benchmarks of

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1.3 The 1899 and 1907 Conferences: differences in outlook

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1.4 An American initiative

2. SUBSTANCE OF THE CONFERENCE

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2.1 War on land

2.1.1 Laws and customs of war on land (Convention IV)

In 1899, many commentators considered the convention on land warfare,

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2.1.2 Opening of hostilities (Convention III)

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As regards the regime of neutral persons who resided in belligerent states

2.2 Naval warfare

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2.2.1 Establishment of an International Prize Court (Convention XII)

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purport. In 1905, in Christiania, the International Law Association had resumed

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2.2.2 Restrictions on the right of capture in maritime war (Convention

Meanwhile, within Martens Fourth Commission, debate on a prospective mari-

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not listed. Martens summoned a comit dexamen which, upon examination,

2.2.3 Status of enemy merchant-ships at the outbreak of hostilities

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2.2.4 Conversion of merchant-ships into war-ships (Convention VII)

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2.2.5 Adaptation of the principles of the Geneva Convention to maritime

2.2.6 Bombardment of undefended ports, towns, villages, dwellings, or

Rejected by Wellington as uncivilized, yet widely acclaimed throughout the

21. Higgins, supra n. 1, at pp. 385-386.

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in 1907. It recommended the ban on bombardment of unfortified coastal town-

2.2.7 Laying of automatic submarine contact mines (Convention VIII)

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2.2.8 Rights and duties of neutral powers in maritime war (Convention

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Compromise was the keyword of the Commissions dealings and the

2.3 Peaceful settlement of disputes

2.3.1 Pacific settlement of international disputes (Convention I)

In 1907 the First Commission, elegantly chaired by Lon Bourgeois, confidently

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2.3.1.1 Commissions of Inquiry (Articles 9-36)

2.3.1.2 General arbitration treaty (Articles 37-40)

No less than 33 bilateral treaties of restricted obligatory arbitration concluded