Chapter V cause it was contrary to his essential interests, the verdict of that jury would be a foregone conclusion."1 Objections of Greece. In the course of the debate on this article M. Beldiman complained that the proposition for International Commissions of Inquiry had never been submitted to a general discussion. A private committee had been directly charged with its preparation, and even the chiefs of the various delegations had had no means of participating in the debates or communicating with their Governments. Moreover, he considered it remarkable that in the different phases of the preparation of the report the representatives of the press seemed to have enjoyed a veritable privilege in the matter of private information. 1 While these pages are passing through the press, the situation in the Chinese Empire affords the most striking example possible, not merely of the class of questions which heretofore have almost invariably led to war, and which under this Convention most certainly can and should be settled by peaceful methods, but more particularly of the necessity of a preliminary impartial investigation of the facts by an international Commission of Inquiry. It is only after a judicial, careful, and thorough inquiry into all the facts which led up to the hostilities during the summer of 1900, that the civilized Powers will be in a position to do justice to China and to adjust among themselves the minor questions of interest arising from their different duties and responsibilities. It is, indeed, an ideal occasion for the work of a Commission of Inquiry, which, if rightly constituted and conducted, may easily avert great perils and accomplish results of far-reaching importance. Under this treaty, the consent of a responsible Chinese Government would be requisite, but this consent might justifiably be compelled under the exceptional circumstances of the case. Where a just cause for war evidently and unquestionably exists, the right to make the readiness to agree to an impartial investigation a condition of peace cannot be doubted, and such compulsion would violate neither the letter nor the spirit of the present treaty. M. Bourgeois at the end of the first reading an- Chapter V nounced that before the second reading the Comité d'Examen would consider the amendments offered on this day, together with other proposals, and added: "All of the objections which have inspired the delegates of Roumania, Servia, and Greece have repeatedly occurred to most of the members of the Committee. If they had believed that the propositions which were adopted contained anything whatever in impairment of the sovereignty or the dignity of any Power, great or small, they would not have received the vote of a single member. It does not seem to me that there can be any true objection on the merits, but it is possible that the form may well be capable of improvement. We are ready to make every effort to agree with our distinguished colleagues, appealing to the sentiment which has often animated us in the course of our deliberations, namely the wish for unanimity in our decisions. I say to M. Beldiman and to the delegates of Servia and Greece, come to the Comité d'Examen, and together we shall endeavor to weigh in the balance the objections which have been raised against the proposition. We shall endeavor to give you every satisfaction, and, in consequence of this interchange of opposing views, we shall be able to say that we have done everything possible for the sake of obtaining unanimity." ARTICLE 10. International Commissions of Inquiry Agreement shall be constituted by a special agreement between sion. for a commis Chapter V Treatymaking power. the parties to the controversy. The agreement for the inquiry shall specify the facts to be examined, and the extent of the powers of the Commissioners. It shall fix the procedure. Upon the inquiry both sides shall be heard. The procedure to be observed, if not provided for in the convention of inquiry, shall be fixed by the Commission. This Article was adopted on the proposition of M. Eyschen, First Delegate from Luxemburg, and it is based on the experience of similar commissions heretofore. The provision that merely a special agreement shall be necessary to constitute the Commission of Inquiry was inserted upon the motion of Count Nigra, who called attention to the embarrassment which might occur under present diplomatic usage, if commissions, which were to proceed according to regular procedure, and whose reports might therefore become precedents, were appointed sometimes by an act of a sovereign treaty-making power, and then again merely by an informal agreement between diplomatic representatives. In view of the fact that the report of the Commission, according to Article 14, is not to have any binding force, it was not the opinion of the Committee that a convention for a Commission of Inquiry must in all cases be a formal treaty. This point is of essential importance in the United States of America on account of the power of the Senate. The appointment of a Commission of Inquiry, having no further necessary consequences than the providing for each party's share of necessary expenses, would seem to be within the ordinary diplomatic func tions of the President and the Department of State by Chapter V memorandum or protocol, whereas an agreement to submit any question to a court of arbitration, the deci sion to be binding upon the parties, must necessarily take the form of a treaty requiring the constitutional coöperation of the Senate. The provisions for a regular procedure, for the hearing of both sides with the necessary implication of communicating to each side everything brought forth by the other, and giving a reasonable opportunity of contradiction, is based, as was shown by M. Eyschen, upon practical experience. Commissions proceeding without these safeguards are apt to confide different phases of the question before them to different members. In the expressive language of one of the members of the Committee, they are quite as likely to be influenced by the opinions of their neighbors at a table d'hôte as by statements made to them while nominally in the exercise of their duty. The requirement fixing a stated order of business will no doubt greatly contribute to their general efficiency. ARTICLE 11. The International Commissions of Method of Inquiry shall be formed, unless otherwise stipu- appointment. lated, in the manner fixed by Article 32 of the present convention. Under Article 32 each party appoints two members, and the four are to select the fifth. The American representative, in the course of the discussion in the Comité d'Examen, called attention to the fact that the reasons for this method which are Chapter V Facilities to given in the case of arbitration under Article 32 do not necessarily apply to commissions of inquiry. It is more important, in this latter case, to have a majority of the commission consist of persons not nominated by either party, inasmuch as the facts may easily be different from the contention of either side. If the commission were constituted according to Article 32, each State would have two members, and there would be only one neutral, who would generally have to agree entirely with either side in order to make any report possible, whereas, if a majority of the commission consisted of neutrals, the report, though perhaps not wholly satisfactory to either party, would have a greatly increased moral authority. The Committee contented itself with spreading this observation upon the minutes, leaving it free, however, to the parties to stipulate according to the exigencies of each particular case. ARTICLE 12. The Powers in dispute agree to be supplied. supply the International Commission of Inquiry, as fully as they may consider it possible, with all means and facilities necessary to enable it to arrive at a complete acquaintance and correct understanding of the facts in question. An important limitation of this Article is contained in the words, "as fully as they may consider it possible" - the danger being that an ill-advised or secretly hostile commission might demand information directly compromising the security of the State. |