An Introduction: Hague Conventions 1899 and 1907

JamesBrownScott

The following passages is a transcription; of an introduction written in 1915 for an edited collection that placed the Hague Conventions and Declarations of 1899 and 1907 in context. Albeit, ‘for the time’ it ought to be noted. Those interested in international legal and diplomatic history would find some use, I hope, in these passages. The writer of these passages is James Brown Scott (pictured above), who at the time was Director of the Division of International Law at The Carnegie Endowment for International Peace. Scott was an influential figure, in the American contribution to international law during the early half of the 20th century. (NB: Citations in the original text have not been transcribed.)

James Brown Scott (1915) “Introduction” in James Brown Scott eds. (1915) The Hague Conventions and Declarations of 1899 and 1907, New York: Oxford University Press, pp. v-xiii

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Introduction

In order that the reader may have a clear idea of the origin and nature of the Hague Conferences, some remarks of a general nature are prefixed, and some documents relating to the call, the nature, and the scope of the Conferences have been printed by way of introduction.

On August 12/24, 1898, the Russian Minister of Foreign Affairs, Count Mouravieff, handed to the diplomatic representatives at Petrograd a circular note proposing a conference of the Governments having diplomatic representatives at the Imperial Court, to consider “a possible reduction of the excessive armaments which weigh upon all nations.” The note declared the maintenance of general peace and the reduction of armaments “as the ideal toward which the endeavors of all Governments should be directed,” and it further stated the belief of the Imperial Government “that the present moment would be very favorable for seeking, by means of international discussion, the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.”

The conference, therefore, was to meet in the interest of general peace and as a means to this general peace “progressive development of existing armaments” was to be checked, and a “possible reduction of the excessive armaments which weigh upon all nations” was to be attempted. The note,as was to be expected, was general in its terms, as its purpose was to state broadly the purpose of the conference and to secure an expression of opinion from the Powers invited.

As the result of an exchange of notes a second circular was handed, December 30, 1898/January 11, 1899, by Count Mouravieff to the diplomatic representatives at Petrograd. In this note the Russian Government stated, within the compass of a sentence, the Czar’s purpose to be “the meeting of a conference with the object of seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The second note, after mentioning “the cordial reception accorded by nearly all the Powers to the step taken by the Imperial Government,” sketched a program for the conference.

While keeping the limitation of armaments to the fore, the note recommended the adaptation to naval war of the stipulations of the Geneva Convention of 1864, the revision of the Declaration of Brussels of 1874, dealing with land warfare, which had not been ratified, and, above and beyond all, “the acceptance, in principle, of the use of good offices, mediation, and voluntary arbitration, in cases where they are available, with the purpose of preventing armed conflicts between nations.”

The Hague was selected for the meeting of the conference, and, at the request of Russia, the Netherland Government issued the invitations to the Powers accredited to Petrograd.

The Conference, by a delicate compliment, assembled on the Czar’s birthday. May 18, 1899, and adjourned on July 29, 1899. In all, twenty-six Governments were represented in the Conference. Of American countries, only the United States and Mexico took part.

The Conference failed to effect the purpose for which it was originally called, as the larger Powers, particularly Germany, were unwilling to agree to a limitation, much less to a reduction, of armaments ; but the Convention for the pacific settlement of international disputes was negotiated, which alone would have justified any conference. Notwithstanding the importance of this Convention, the Conference itself was more important than its labors, because it showed the possibility of twenty-six nations meeting in conference and agreeing upon measures of interest to the world’s welfare. An idea is generally greater than its realization.

The Conference from the time of its meeting was popularly called a Peace Conference, and the delegates appear to have accepted this designation without formal or official action.

It had been expected by Baron de Staal, the President of the Conference, that a new one would meet the next year. The years slipped by, and Russia, which called the Conference, found itself at war with Japan. The Interparliamentary Union, at its meeting in St. Louis in 1904, therefore urged the President of the United States to call a second conference. President Roosevelt gladly acceded to this request and sounded the Powers as to their willingness to meet again in conference at The Hague. This was done by a note of Secretary of State Hay, dated October 21, 1904, to the American diplomatic representatives accredited to the Governments signatory to the Acts of the First Hague Conference.

The Powers expressed their willingness to take part in a second conference, as is stated in the second note of Secretary Hay of December 16, 1904. The termination of the Russo-Japanese War through the good offices of President Roosevelt turned the Czar’s thoughts again to peace and to the Conference which he had called into being. He therefore resumed the initiative and himself proposed a second peace conference at The Hague.

The Powers accepted this invitation and the program was drafted by Russia in a note to Secretary of State Root, dated April 12, 1906. The Powers were invited by the Netherland Government in April, 1907, to meet at The Hague on June 15. The Conference met as invited and adjourned on October 18, 1907.

It will be recalled that the United States and Mexico were the only American Powers represented at the first Conference. Brazil had been invited but had declined the invitation. The United States, however, was unwilling to participate in a second Conference unless the other Republics of America were asked to attend. It was advisable, if not necessary, that the American Republics should formally approve and agree to be bound by the various Hague agreements. Therefore the American States which did not subscribe to the three Conventions signed at The Hague on July 29, 1899, formally recognized “as a part of public international American law the principles set forth therein.” The Convention for the pacific settlement of international disputes was, however, what is known as a closed Convention; that is to say, it could be adhered to by Powers not participating in the First Conference only by the consent of the signatory Powers. The United States and Mexico were authorized on January 15, 1902, by the Second Pan American Conference, which met at Mexico, “to negotiate with the other signatory Powers of the Convention for the adherence thereto of the American nations so requesting and not now signatory to the said Convention.” Through the good offices of the United States an agreement was reached and a protocol signed at The Hague on June 14, 1907, “to enable the States that were not represented at the First Peace Conference and were invited to the Second to adhere to the aforesaid Convention.” A procès-verbal of adhesions was drawn up the next day, which the Latin American States promptly signed. They thus became entitled to the benefits of this epoch-making Convention. Likewise, through the good offices of the United States, due to the enlightened statesmanship and generous forethought of Secretary Root, the Latin American Republics not invited to the First Conference were invited to the Second, and, with the exception of Honduras, which unfortunately was in the throes of a revolution,, and of Costa Rica, which did not send delegates, they were all represented and took part in the Conference.

The Conventions of 1899 were revised and some ten new ones adopted by the Second Conference. But important as these documents were and are, the Conference itself was still more important. The First Conference was in the nature of an experiment, which showed, however, that the representatives of twenty-six States could meet and confer and devise measures of use to mankind. The Second Conference, in which forty-four States were represented, demonstrated that practically all nations of the world, recognizing and applying international law, could meet together, discuss and debate matters of universal interest, and, just as smaller and more exclusive bodies, reach results of the greatest value to mankind. The Hague Conference thus passed through the experimental stage and became a recognized international institution.

What is the nature of this international institution? It is sometimes called the Parliament of Man, but this title is both misleading and inaccurate. It is not a parliament in the technical sense, and its actions only affect the States represented. It is a diplomatic body in which each State may be represented by as many delegates as it chooses to send, but its delegates, however numerous, vote as a unit; that is to say, each State has but a single vote. Each State is recognized in international law as the equal of every other State before the law. No authority should be needed for this axiom, but as large States are often said to have greater rights than little ones, thus confusing legal right with political influence, the measured and impressive language of Chief Justice Marshall should be quoted on this point. In the Antelope (10 Wheaton 63, 122), decided by the Supreme Court of the United States in 1825, that great and just judge said, speaking for a unanimous Court:

No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone.

Likewise, on the point of equality. Sir William Scott (Lord Stowell), another great judge of the English-speaking peoples, had already said, in the Louis (2 Dodson, 210) :

I have to observe, that two principles of public law are generally recognized as fundamental. One is the perfect equality and entire independence of all distinctive States. Relative magnitude creates no distinction of right; relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbor; and any advantage seized upon that ground is mere usurpation. This is the great foundation of public law, which it mainly concerns the peace of mankind, both in their politic and private capacities, to preserve inviolate. The second is, that all nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation.

It necessarily follows that no State is superior to the other, as among equals there is not and cannot be a superior. Hence, a State is only bound by the action of the Conference if it consents to it. The unanimity rule prevails in diplomatic conferences. Majorities and minorities, in the parliamentary sense of the word, are unknown.

A body of this kind is, as its name implies, a Conference. It is not a legislature. Its Conventions are recommendations to the Governments participating in the Conference to adopt them according to their respective laws and to deposit the ratifications of them, in accordance with the terms of the Conventions, at The Hague. The signing of a Convention by the delegates at The Hague creates no legal obligation. As the delegates act under instructions it does, however, create a moral obligation to submit the Conventions and signed Declarations to the appropriate branch of the Government in order to be duly approved by this body and to invest them with the force of law in so far as the particular country is concerned. The Conventions and signed Declarations become binding only after the ratifications have been deposited at The Hague.

It sometimes happens that a nation does not sign a Convention. It may later change its mind. If the time is past for signing it may, however, adhere to the Convention, and the deposit of the instrument of adherence at The Hague, in accordance with the terms of the Convention, has the effect of ratification. It should be said that only the formal agreements of the Conference, such as the Conventions and signed Declarations, are ratified. The informal agreements, such as the unsigned declarations, resolutions, recommendations and vœux (a cross between a wish and a hope), are not signed separately. The formal Conventions and signed Declarations are in the nature of contracts which, when ratified and deposited at The Hague, become binding upon the ratifying Governments. The informal agreements are not contracts. They are expressions of opinion by the Conference and, as such, have a moral, though not a legal, value. They are not issued separately but are contained in the Final Act, which is an official summary of the proceedings of each Conference. As such it is signed by the delegates but not ratified by the participating States.

It is not the purpose of this brief note to comment in detail upon the formal or informal agreements of the Conferences, as they speak for themselves. It is, however, advisable to make some general observations upon the Conventions and signed Declarations dealing with war, upon the Prize Court Convention, and upon the Convention for the establishment of a Court of Arbitral Justice.

Most of the Conventions and the signed Declarations concerning war contain a clause to the effect that they only bind belligerents which have ratified them, and then only if all the belligerents are contracting Powers. It is therefore necessary to ascertain whether all belligerents have ratified a particular Convention before pronouncing it to be in effect as regards them. It should, however, be pointed out that the failure of a belligerent to ratify a particular Convention only means that the Convention as such is not binding upon it; it does not and can not mean that the principles of law contained in the Convention may not bind the conduct of the parties. It is therefore necessary still further to ascertain whether the provisions of the Convention are merely a codification of international law. In this event the provisions are binding as international law, although the Convention itself, or this part of it, may be ineffective. A careful examination of the Conventions of the two Conferences will show that most of their provisions are declaratory, not amendatory, of international law, and that the failure of one Power or of any number of Powers to ratify them is merely to be regarded as the rejection of a codified text, not as the rejection of principles of international law, which no Power can reject without excluding itself from the society of nations.

A word should be said about the Additional Protocol to the Convention for the International Prize Court. By this Convention an appeal could be taken from the judgment of the highest court of a particular country to the Prize Court at The Hague, a provision which met with some opposition in the United States. Secretary Root therefore proposed that, to obviate possible constitution difficulties, the question at issue between the Governments and decided in the national judgment should be submitted to the Prize Court instead of the judgment of the court of last resort. The result would be a decision upon the merits of a case without a reversal of the national judgment. An additional protocol modifying the Prize Court Convention in this sense was signed at The Hague, September 19, 1910, by thirteen Powers and has since been signed by every signatory of the Prize Court Convention itself. The text of this document is therefore included in the collection, as it is necessary to a correct understanding of the nature and functions of the proposed Prize Court.

Finally, the attention of the reader should be called to the fact that a Draft Convention for the establishment of a Permanent Court of Justice was adopted by the Second Conference. Unable to agree upon the method of appointing the judges, the Conference nevertheless declared itself in favor of instituting the Court, through diplomatic channels, after the adjournment of the Conference, as appears from the following voeu:

The Conference recommends to the signatory Powers the adoption of the annexed Draft Convention for the creation of a Judicial Arbitration Court, and the bringing it into force as soon as an agreement has been reached respecting the selection of the judges and the constitution of the Court.

Like the Prize Court, the Court of Arbitral justice has not yet been established, but there can be no doubt that one or the other will be constituted, or that a tribunal with the jurisdiction of both will be created and be installed at The Hague at no distant date.

It has been said that the Hague Conference, from being an experiment, has become an institution. In support of this statement the following passage is quoted from the Final Act of 1907:

Finally, the Conference recommends to the Powers the assembly of a Third Peace Conference, which might be held within a period corresponding to that which has elapsed since the preceding Conference, at a date to be fixed by common agreement between the Powers, and it calls their attention to the necessity of preparing the program of this Third Conference a sufficient time in advance to ensure its deliberations being conducted with the necessary authority and expedition.

Eight years intervened between the First and the Second Conference. The Third therefore should, in accordance with this recommendation, have been held in 1915. The date of meeting, however, is unimportant, if it be admitted that the meeting should and must take place. The Conference should meet automatically at regular, stated periods. It will doubtless do so, and when an international conference meets at short intervals at The Hague the world will have an institution which can not only codify but can develop international law to meet the needs of nations, binding all because made and accepted by all, and adopt measures conceived not in the interest of any one country but of all countries, for the Conference is in reality a law making body.

As to the value of the Hague Conferences, there can be no doubt. On this point Secretary Root said, in submitting the Hague Conventions of 1907 for consideration by the Senate:

Let me go beyond the limits of the customary formal letter of transmittal and say that I think the work of the Second Hague Conference, which is mainly embodied in these Conventions, presents the greatest advance ever made at any single time toward the reasonable and peaceful regulation of international conduct, unless it be the advance made at the Hague Conference of 1899.

The most valuable result of the Conference of 1899 was that it made the work of the Conference of 1907 possible. The achievements of the two Conferences justify the belief that the world has entered upon an orderly process through which, step by step, in successive Conferences, each taking the work of its predecessor as its point of departure, there may be continual progress toward making the practice of civilized nations conform to their peaceful professions.

We must not expect too much at once. The world moves slowly, but it moves. To quote the graceful language of the creator of the Conference, the present enlightened Czar Nicholas: “One must wait longer when planting an oak than when planting a flower.”

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James Brown Scott (1915) “Introduction” in James Brown Scott eds. (1915) The Hague Conventions and Declarations of 1899 and 1907, New York: Oxford University Press, pp. v-xiii

The full text is available from the internet archive.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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