New Rules and Institutions for the Peaceful Settlement of International Disputes

Author(s): Leo Gross

Source: Proceedings of the Annual Meeting (American Society of International Law) ,
APRIL 22-24, 1982, Vol. 76 (APRIL 22-24, 1982), pp. 131-134
Published by: Cambridge University Press on behalf of the American Society of
International Law

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 131

signed on October 18, 1907.1 The 13 conventions and one declaration fall into
three general categories: (1) new rules and institutions for the peaceful settle
ment of international disputes, (2) the law of the sea, and (3) the laws of war.
Today we have with us leading authorities in these respective areas to analyze
the historical significance of the Second Hague Peace Conference after 75 years.
After their presentations, I will attempt to offer a summary overview of the
historical significance of the Second Hague Peace Conference from the perspec
tive of the United States of America, particularly because leading members of
the U.S. delegation were members of the American Society of International
Law.

New Rules and Institutions for the Peaceful Settlement of

International Disputes
by Leo Gross*
The Hague Peace Conferences may be regarded as part of a continuing effort
to establish institutions for the peaceful settlement of disputes, i.e., some kind of
permanent international tribunal and some kind of obligatory or compulsory
jurisdiction for the tribunal. This goal still eludes us since, although we have a
permanent court, it still has no compulsory jurisdiction exception a voluntary
basis.
It was easy at the time to be skeptical about the achievements of the Hague
Peace Conferences. It was widely said that the term, Permanent Court of Arbi
tration, was a misnomer since it was neither permanent nor a court. Yet some
writers at the time held a more optimistic view. One very prominent German
writer, Walther Schucking, wrote a substantial work in 19121 about the Union
of the Hague Conferences in which he took the position that the Convention on
the Pacific Settlement of Disputes was "the Magna Carta for the organization of
the civilized world." He considered that the task for the Third Hague Peace
Conference, which was to take place in 1915, should be to lay the foundations for
a true international federation. If the second conference was delayed on account
of the Russo-Japanese War, the Third Hague Conference was delayed on account
of World War I. Thus the 1919 Peace Conference was in a sense the Third Hague
Peace Conference, and it did lay down the foundations for an international
organization in the political arena as well as carry the work of the 1907 Confer
ence one or two steps further.
From an empirical view the results of what was achieved by the institutions
created in 1899 and 1907 are rather meager. Between 1899 and 1907 only four
cases were decided by a tribunal of the Permanent Court. Between the second
conference and the outbreak of World War I, there were 11 cases. Between 1919
and 1940 there were eight cases, and since 1945, there have been only two cases.

*A11 the 1907 Conventions subsequently ratified by the United States are published at 36 Stat.
2199-2443 and republished in 1 C. Bevans, Treaties and Other International Agreements of
the United States of America 1776-1949, at 577-741 (1968). All the texts are published in the
Supplement to 2 AJIL (1908). The 1899 Hague Conventions and Declarations are published at 32
Stat. 1779 and 1 C. Bevans, supra at 230-70.
Professor of International Law Emeritus, Fletcher School of Law and Diplomacy.
*W. Schucking, The International Union of The Hague Conferences 240 (1918). The origi
nal in German appeared in 1912.

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 132

Altogether some 25 cases have been decided, some of which not by tribunals of
the Permanent Court but special tribunals. One case was between a state and a
British corporation.
The permanent organ of the conferences, the Bureau at The Hague, has tried
to "solicit" business by making the facilities available for arbitrations in which
only one party is a state. There have been one or two cases in which disputes
between a state and a nonstate party were submitted to arbitration.
Another organ recommended by the Conferences, Commissions of Inquiry,
created great hopes that governments would make use of them to clarify dis
puted facts such as those associated with the beginning of the Russo-Japanese
War, and thereby erdighten public opinion and enlist it on the side of peace. But
few cases were submitted to a Commission of Inquiry. Between 1898 and World
War II there were altogether three cases submitted to a Commission of Inquiry
under the Hague Conventions. Since then only a single case, the Med Crusader2
between the United Kingdom and Denmark, was submitted in 1961-62. The
League of Nations Covenant gave special prominence to this method of promot
ing peaceful settlement of disputes, by exempting the establishment of such
commissions from the requirement of unanimity. The League used them on a
number of occasions, such as the Manchurian Incident.
The 1907 Hague Convention (I) for the Pacific Settlement of International
Disputes did not break new ground. It was not possible to establish a permanent
court nor to provide for compulsory arbitration. Otherwise, improvements were
made in the drafting of the text and certain new functions were added to those to
be performed by the international tribunal. One new provision in 1907 was in
Article 48(3) whereby in the case of international tension one state could submit
a note to the International Bureau, declaring it was ready to submit the dispute
to arbitration, leaving it to the other state to accept the offer.
Arbitration is a proceeding in which states have a large measure of choice and
discretion which leads very often to frustrations of a general or a specific com
mitment to arbitration. Therefore the later efforts, including those of the U.N.
International Law Commission, have been to draft an instrument that would
make frustration impossible. But governments do not want a convention that
would make it impossible for them to frustrate a commitment to arbitration.
They want control to the very last moment for themselves.
At the 1907 Conference then, one issue was who would settle the compromis,
the special agreement defining the dispute, appointing the arbitrators, etc., if
the parties failed to agree by diplomatic means. Articles 52-54 were an innova
tion providing that it would then be done by the Tribunal or a commission set up
by the Tribunal. The United States reserved Article 53 because it would not give
up this measure of control.
The provisions on evidence (Articles 75-76) are so well conceived that Shabtai
Rosenne has regarded them as a useful addition to the Statute of the Interna
tional Court of Justice.3
The new provisions for summary procedure were also very useful, since arbi
tration is often criticized as time consuming and expensive. Articles 86-90 pro

2Bureau International de la Cour Permanente D'Arbitrage, Report of the Commission

of Enquiry Established by the United Kingdom and Denmark on November 15,1961, Inves
tigation of Certain Incidents Affecting the British Trawler "Red Crusader" (the Red
Crusader Incident) (March 1962).
32 S. Rosenne, The Law and Practice of the International Court 576 (1965).

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 133

vided for proceedings only in writing unless the Tribunal called for hearings. The
1907 Convention continued in Article 73 the basic necessity of the Tribunal's
deterrruning whether or not it had jurisdiction under the compromis. It also
provided again, even during hostilities, for good offices and mediation (Articles
2-8) "as far as circumstances permit" without any obligation on the disputants
to accept these offers.
The provisions for a Commission of Inquiry were elaborated in 1907, but as
indicated earlier, they were not used very often.
As a result of a 1902 dispute between Venezuela and Great Britain, Germany
and Italy, there was much feeling in the Americas against the use of force for the
recovery of contract debts. This resulted in Convention II, Respecting the Limi
tation of the Employment of Force for the Recovery of Contract Debts. This
consists of two paragraphs: The parties agree not to have recourse to armed
force for the collection of contract debts owed to the nationals of another coun
try, and they agree that this undertaking shall not apply if an offer of arbitration
has been rejected or, if after the arbitration, the award is not carried out. This is
a recognition?current today?that if you renounce the use of force there must
be an effective system for the pacific settlement of disputes. The 1907 American
Journal of International Law "Editorial Comment"4 on this convention stated that
this convention was "probably the most important work of the [1907J Conference,
for the nations of America at least," because it would promote justice and peace
within this hemisphere. Actually it has been invoked very little, if at all. It has been
referred to, somewhat surprisingly, in the Norwegian Loans case, where France
opposed the Norwegian claim that the payment of a contract debt was a matter
within her domestic jurisdiction on the ground that they were both parties to the
Hague Convention II which took the matter out of the realm of domestic jurisdic
tion. The International Court of Justice said the convention did not establish obliga
tory jurisdiction in cases involving contract debts.5
At the 1907 Conference, the United States, the United Kingdom and Ger
many wanted to approach the question of a permanent tribunal in a new way,
with a new tribunal carrying forward the idea of permanency if not of obligation.
This resulted in a "voeu" of the conference (ie., "a cross between a wish and a
hope"6) recommending adoption of a detailed draft convention creating a Judi
cial Arbitration Court attached to the Final Act. The conference also adopted a
declaration, as part of its Final Act, stating that the conference was unanimous
in admitting the principle of compulsory arbitration and in declaring that cer
tain disputes, relating to the interpretations and application of international
agreements, were particularly suitable for compulsory arbitration. Many provi
sions of this project were continually referred to by the Committee of Jurists of
1920 who drafted the Statute of the Permanent Court of International Justice.7
It is notable that neither this Judicial Arbitration Court nor the Permanent
Court of International Justice would displace the Permanent Court of Arbitra
tion.
The Project of 1907 did not solve the main problem of the selection of judges
of the court. But it did provide for judges and deputy judges elected for 12
years, an idea borrowed from the Convention for the International Prize Court

41 AJIL 944, 948(1907).

5Norwegian Loans Case (France v. Norway), 1957 LC.J. 9, 24.
6J. Scott, The Hague Conventions and Declarations of 1899 and 1907, at x (1915).
7M. Hudson, The Permanent Court of International Justice 1920-1942, at 117 (1943).

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 134

and included in the Statute of the Permanent Court of International Justice

from 1920 to 1936. The 1907 provisions regarding the judges' qualifications
were almost textually incorporated into the Statute of the Permanent Court of
International Justice.
As this project for an Arbitral Court was not put into practice, the United
States suggested at the 1909 London Naval Conference that in ratifying the
Convention on the International Prize Court states could agree to have the
International Prize Court exercise the functions of the Judicial Arbitration
Court pending its estabhshment. The delegates felt that that Conference was an
improper forum and that diplomatic channels were proper. Accordingly Secre
tary of State Knox in 1909 sent a circular letter suggesting adoption of a
protocol to enable the International Prize Court to exercise the functions of the
Judicial Arbitration Court. The response was unsatisfactory, and the Knox pro
posal died with the failure of the British Government to ratify the 1909 London
Declaration and the consequent failure of the International Prize Court to come
into existence.
Thus, although the 1907 Conference would not achieve its most ambitious
objective, it had not labored in vain. It had laid the groundwork for the next
step; that is, the estabhshment of the Permanent Court of International Justice.
For as Manley Hudson pointed out in his magisterial treatise:

Though the Court of Arbitral Justice planned in 1907 was never estab
lished, the promulgation of the project by the Second Peace Conference had
a profound effect on world opinion in the succeeding years, and it later
assisted in establishing a conviction, already quite general in 1914, that a
new judicial institution was needed. Moreover, it supplied a set of definite
ideas which could be used in fresh efforts in the future, and the 1907 project
naturally served as a point of departure when the Statute of the Permanent
Court of International Justice was being drafted in 1920. Credit is therefore
due to the men who struggled so valiantly to establish the Court of Arbitral
Justice, for without their effort, the world might have been unprepared to
take the step forward which was achieved in 1920.8

In conclusion I should like to recall Secretary of State Elihu Root's words in

his submission of the Hague Conventions of 1907 to the Senate for its consider
ation:

The achievements of the two Conferences justify the belief that the world
has entered upon an orderly process through which, step by step, in succes
sive 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.9

That is where we are exactly, still trying to make the practices of governments
coincide with their professions.

8Id, at 83-84.
^Quoted in J. Scott, supra note 6, at xiii. It may be noted that Root was a member of the
Committee of Jurists that drafted the Statute of the Permanent Court of International Justice
along with Baron Descamps of Belgium, F. Hagerup of Norway, and A. Ricci-Busatti of Italy, who
had participated in the 1907 Conference. See M. Hudson, supra note 7, at 114-17.

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