each, and it feels that the progress of the world is set back by the war between these two great nations. "The President accordingly urges the Russian and Japanese Governments, not only for their own sakes, but in the interest of the whole civilized world, to open direct negotiations for peace with one another. The President suggests that these peace negotiations be conducted directly and exclusively between the belligerents; in other words, that there may be a meeting of Russian and Japanese plenipotentiaries or delegates without any intermediary, in order to see if it is not possible for these representatives of the two powers to agree to terms of peace. The President earnestly asks that the Russian [Japanese] Government do now agree to such meeting, and in asking the Japenese [Russian] Government likewise to agree. "While the President does not feel that any intermediary should be called in in respect to the peace negotiations themselves, he is entirely willing to do what he properly can, if the two powers concerned feel that his services will be of aid in arranging the preliminaries as to the time and place of meeting. But if even these preliminaries can be arranged directly between the two powers, or in any other way, the President will be glad, as his sole purpose is to bring about a meeting which the whole civilized world will pray may result in peace." Mr. Loomis, Assist. Sec. of State, to Mr. Meyer, amb. at St. Petersburg, The negotiations following this invitation led to the sending of plenipo- (4) THE HAGUE CONVENTION. § 1068. "TITLE I.-ON THE MAINTENANCE OF THE GENERAL PEACE. "ARTICLE I. With a view to obviating, as far as possible, recourse to force in the relations between States, the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences. "TITLE II.-ON GOOD OFFICES AND MEDIATION. "ARTICLE II. In case of serious disagreement or conflict, before an appeal to arms, the Signatory Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers. “ARTICLE III. Independently of this recourse, the Signatory Powers recommend that one or more Powers, strangers to the dispute, should, on their own initiative, and as far as circumstances may allow, offer their good offices or mediation to the States at variance. -Powers, strangers to the dispute, have the right to offer good offices or mediation, even during the course of hostilities. The exercise of this right can never be regarded by one or the other of the parties in conflict as an unfriendly act. "ARTICLE IV. The part of the mediator consists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at variance. "ARTICLE V. The functions of the mediator are at an end when once it is declared, either by one of the parties to the dispute, or by the mediator himself, that the means of reconciliation proposed by him are not accepted "ARTICLE VI. Good offices and mediation, either at the request of the parties at variance, or on the initiative of Powers strangers to the dispute, have exclusively the character of advice and never having binding force. “ARTICLE VII. The acceptance of mediation can not, unless there be an agreement to the contrary, have the effect of interrupting, delayng, or hindering mobilization or other measures of preparation for war. "If mediation occurs after the commencement of hostilities it canes no interruption to the military operations in progress, unless there be an agreement to the contrary. "ARTICLE VIII. The Signatory Powers are agreed in recommending the application, when circumstances allow, of special mediation in the following form:— In case of a serious difference endangering the peace, the States at variance choose respectively a Power, to whom they intrust the mission of entering into direct communication with the Power chosen on the other side, with the object of preventing the rupture of pacific relations. For the period of this mandate, the term of which, unless otherwie stipulated, can not exceed thirty days, the States in conflict erase from all direct communication on the subject of the dispute, which is regarded as referred exclusively to the meditating Powers, who must use their best efforts to settle it. In case of a definite rupture of pacific relations, these Powers are charged with the joint task of taking advantage of any opportunity to restore peace. H. Doc. 551-vol 7-8 "TITLE III.-ON INTERNATIONAL COMMISSIONS OF INQUIRY. "ARTICLE IX. In differences of an international nature involving neither honor nor vital interests, and arising from a difference of opinion on points of fact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by means of diplomacy, should as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation. "ARTICLE X. The International Commissions of Inquiry are constituted by special agreement between the parties in conflict. "The Convention for an inquiry defines the facts to be examined and the full extent of the Commissioners' powers. "It settles the procedure. "On the inquiry both sides must be heard. The form and the periods to be observed, if not stated in the inquiry Convention, are decided by the Commission itself. "ARTICLE XI. The International Commissions of Inquiry are formed, unless otherwise stipulated, in the manner fixed by Article XXXII of the present convention. "ARTICLE XII. The powers in dispute engage to supply the International Commission of Inquiry, as fully as they may think possible, with all means and facilities necessary to enable it to be completely acquainted with and to accurately understand the facts in question. "ARTICLE XIII. The International Commission of Inquiry communicates its Report to the conflicting Powers, signed by all the members of the Commission. "ARTICLE XIV. .The report of the International Commission of Inquiry is limited to a statement of facts, and has in no way the character of an arbital award. It leaves the conflicting Powers entire freedom as to the effect to be given to this statement." Convention for the Pacific Settlement of International Disputes, The 3. ARBITRATION. (1) A JUDICIAL METHOD. § 1069. According to present practice, the redress of national grievances may be pursued, first, by amicable methods; and, secondly, by force. Of amicable methods the most common is negotiation. There is nothing more conducive to the settlement of differences than a fair and candid discussion of them. Where this fails, we may yet try arbitration or mediation. These methods are often discussed as if they were practically the same, but in reality they are fundamentally different. Mediation is an advisory, arbitration a judicial, function. Mediation recommend, arbitration decides. While nations might for this reason accept mediation in various cases in which they might be unwilling or reluctant to arbitrate, it is also true that they have often settled by arbitration questions which mediation could not have adjusted. It is, for example, hardly conceivable that the question of the Alabama claims could have been settled by mediation. The same thing may be said of many and indeed of most of the great number of boundary disputes that have been settled by arbitration. The importance of mediation as a form of amicable negotiation should not be minimized. The Congress of Paris of 1856, as well as the Congo Conference of 1884, made a declaration in favor of the practice of mediation; and a formal plan of mediation forms part of the convention lately adopted at The Hague for the settlement of international disputes. Nevertheless, mediation is merely a diplomatic function and offers nothing new. Arbitration, on the contrary, represents a principle as yet cnly occasionally acted upon, namely, the application of law and of judicial methods to the determination of disputes between nations. Its object is to displace war between nations as a means of obtaining national redress, by the judgments of international judicial tribunals; just as private war between individuals, as a means of obtaining perSonal redress, has, in consequence of the development of law and order in civilized states, been supplanted by the processes of municipal courts. In discussing the subject of arbitration we are therefore to exclude from consideration, except as a means to that end, mediation, good offices, or other forms of negotiation. - It seems . . . that the commissioners [under the claims convention between the three states formerly composing the original Republic of Colombia] consider their functions as partially if not exlusively diplomatic and not judicial. This we were not prepared to expect either by the convention under which they are acting or by the despatches of Mr. McAfee in relation to it. It was known that the main objects of that convention were to fix the proportion due from each of the states on account of the debts of Colombia, to constitute a board for hearing and deciding upon them and to prescribe the forms in which the proceedings of the board were to be conducted. According to all our previous experience in relation to such bodies, their functions were considered to be purely judicial in their nature. Not only all diplomatic action between those states themselves in rela tion to the subjects of the convention was supposed to be finally concluded by it, but also to be suspended between them and such foreign nations as might be disposed to respect it, at least until those subjects had been judicially investigated and disposed of by the board. 'La comision de ministros' is the phrase used in the convention when the board is mentioned. This, though literally 'commission of ministers,' was, when the duties assigned were considered, interpreted as conveying in English the meaning of 'board of commissioners.' In their communications to you the commissioners assume the titles of 'ministers plenipotentiary and Colombian assembly.' As these titles are not authorized by the convention, it is reasonable to presume that they were used to inculcate the idea that the functions of the commissioners were designed to be exclusively diplomatic. It is true that the convention also stipulates that the commissioners shall be duly accredited and instructed. This, however, was construed to mean that they were severally to be furnished by the governments appointing them with evidence of their appointment and that the instructions which they were to receive were not designed to extend or alter the nature of their proceedings as prescribed by the convention itself. There is no article of the convention which requires the board to demand evidence of the agents of foreign creditors of their authority to represent their constituents. 66 Though in forming their governments the Spanish-American Republics have copied with considerable accuracy the Constitution of the United States, some of their constitutions are deficient in the precision with which that model defines the functions of the executive and judicial authority, and in none of them are the duties and powers of those departments as distinct and independent as they were intended to be made by our Constitution. There is also frequent occasion to remark that the public men of those countries do not appear to be aware how essential it is for all good government and especially for all claiming to be republican in theory and aiming to be so in practice, that neither the executive nor the judiciary should encroach upon the peculiar provinces the one of the other. In the course of the negotiation of a late convention with Mexico, Mr. Martinez, the Plenipotentiary of that Government, submitted a draft of articles one of which contained a stipulation that the commissioners of the two Governments to be appointed to hear and decide on the claims were to be duly instructed, etc. This was objected to by me as being incompatible with the peculiarly judicial functions of the commissioners, and the force of the objection was acknowledged, for the convention, as concluded, contains no stipulation of the character referred to." Mr. Forsyth, Sec. of State, to Mr. Semple, chargé d'affaires to New See Moore, Int. Arbitrations, II. 1226. |