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WADLOW, Joan Krueger, 1 9 3 2 -

COMMISSIONS OF INQUIRY IN INTERNATIONAL DISPUTES.
The University of Nebraska, P h .D .,1963

Political Science, international law and r elations
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Copyright
by JOAN KRUEGER
VJADLOW
1963
COMMISSIONS OP INQUIRY
IN INTERNATIONAL DISPUTES
by
Joan Krueger Wadlow
A THESIS
Presented to the Faculty of
The Graduate College in the University of Nebraska
In Partial Fulfillment of Requirements
For the Degree of Doctor of Philosophy
Department of Political Science
Under the Supervision of Professor Norman L. Hill
Lincoln, Nebraska
December, 1962
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
TITLE
COMMISSIONS OF INQUIRY
IN INTERNATIONAL DISPUTES
BY
Joan Krueger Wadlow
APPROVED DATE
Professor Norman L. Hill January 14, 1963
Associate Professor Alexander T. Fdelmann January 14, 1963
Associate Professor Carl J. Schneider January 14, 1963 Professor
Albin T. Anderson January 14, 1963
Professor Curtis . Elliott January 14, 1963
SUPERVISORY COMMITTEE
G R A D U A T E COLLEGE UNIVERSITY OF NEBRASKA
CONTENTS
PREFACE
PART I— The Development of the Concept of International

Inquiry
Chapter 1. Introduction ......................... 1
Chapter 2. Origins of the Concept of International

I n q u i r y ........................... 13
Chapter 3. The Hague System of I n q u i r y ......... 34
Chapter 4. The Bryan Peace Treaties ............. 6l
Chapter 5. Inquiry in the League of Nations . .. 80
Chapter 6. Treaties on Inquiry Since 1919 . ... 114-
Chapter 7. Inquiry in the United Nations . .. . 153
Chapter 8. Inquiry in the Organization of

American States .................. 195
Chapter 9. Inquiry in International Tribunals

and Administrative Commissions . . 223
PART II— Conclusions and Recommendations
Chapter 10. Constitution, Authority and Results

of Commissions ........ 247
Chapter 11. Commissions in Operation ............. 278
Selected Bibliography ................................. 305
Appendix ............................................. 326
PREFACE
No comprehensive examination has been made of the inter-
national commission of inquiry since the period when it was
introduced into international affairs by the Hague Peace
Conferences of 1899 and 1907 and further developed by the Bryan
treaties. Yet since this period the process of inter-
national inquiry has won a place in the world's peace machinery;
it has been used in major disputes frequently and often
constructively, and in minor controversies with even more
conspicuous successes. Because of its place in peaceful
settlement, an effort to examine its development and use and to
evaluate its roleis presently in order.
In its approach to the subject, this study is divided into
two parts. In the first portion the development of the
concept and practice of international inquiry as a means of
peaceful settlement will be described and analyzed; attention
will be directed to the various systems of inquiry which states
and international organizations have set up, emphasizing the
problems encountered both in their creation and in their
functioning. This will lead rather naturally to the second part
which will consist of an evaluation of the detailed arrangements,
presented topically, under which commissions of inquiry have
been used in specific disputes. One objective here will be to
determine the nature and extent of their
usefulness in the treatment of International differences.
Special attention will also be given to the conditions which
may have contributed to their successes and to possible
explanations of their failures. Suggestions for improving
the procedure of international inquiry based on what the
experiences of the commissions disclose will also be made.
It is with great pleasure that I express my gratitude to
Prof. Norman L. Hill for valuable guidance and constructive
criticisms.
Finally, I am happy to thank librarians at the University
of Nebraska and the Palais des Nations in Geneva for their
assistance in locating materials.
I
DEVELOPMENT OP THE CONCEPT OP INTERNATIONAL INQUIRY
CHAPTER I
INTRODUCTION
In its origin the international commission of inquiry was
a response to two urgent problems long encountered in the
treatment of international disputes. They were identified
by Professor Potter a number of years ago in the following
statement:
On the one hand, it is undeniably true that much

of the difficulty in settling international disputes
amicably derives from the initial difficulty of
establishing a statement or version of the facts to
which both parties will agree. On the other hand,
this difficulty perpetuates itself by allowing
passions to be roused on either side which not only
obstruct agreement between the parties on points of
principle but also prevent a clear settlement of the
facts in the case in preparation for agreement on
points of principle.1
The need to solve these problems was advanced by the
Russian jurist Professor Frederick de Martens and former
United States Secretary of State William Jennings Bryan, in
support of their projects for international inquiry. To
explain his concept of inquiry, Professor de Martens made the
following observation on one occasion:
1 PitmanB. Potter, an Introduction to the Study of International Organization

(1922), p. 2067“ A similar view was expressed by Albert Beaucourt, Les
commissions Inter- nationales d^nqugte (1909), pp. ll-12^and Maurice
Bokanowski, Les commissions Internationales d*enquete (1908), p. 7»
2
...Suppose the authorities on a frontier arrest

somebody on foreign territory. A most serious
conflict can arise from this— the more obscure the
circumstances are, the more objections are raised.
Newspaper articles, interpellations in Parliament, may
force the hands of the governments and involve them in
conduct even opposed to their intentions. One can
compare the commission of inquiry to a safety valve
given to the governments. They are allowed to say to
the very excited and ill-informed public opinion,
"Wait— we will organize a commission which
will go to the spot, which shall furnish all the new
information— in a word, it shall shed light.” In that
way time is gained 2.
For his part, Mr. Bryan maintained at the Interparliamentary
Union Conference in London in 1906 that during the period
commissions were endeavoring to elucidate the facts, there
would be time for passions to subside and for public opinion

•3
to be mobilized to work for peace.
During the years that have intervened since Professor
de Martens and Mr. Bryan argued in its behalf, the international
commission of inquiry has become a common procedure in the
peacemaking machinery of international organizations and in
the bilateral arrangements states have made to handle dif-
ferences. It appears in Article 33 of the United Nations
Charter as one of the enumerated methods for members t o use
2 James Brown Scott (ed.), The Proceedings of the Hague

Peace Conferences: The Conference of 1899 (1920), Third
Commission, bth Meeting, July 19, P. 641.
3 Cited by Denys P. Myers, “The Commission of Inquiry:

The Wilson-Bryan Peace Plan,” World Peace Foundation Pamphlet
Series, vol. 3, part 1 (Nov. 1913)7 P. 20.
3
4
in resolving their controversies peaceably.
It is clear that in any international controversy, some
kind of an investigation of the facts is almost certain to
occur. Even the negotiation or the diplomatic discussion of
a dispute will involve facts or alleged facts obtained in some
way, perhaps by unilateral inquiries of the states implicated.
But the international commission of inquiry, as Professor
Potter has pointed out, "rests upon a different principle,
is organized and conducted in a different manner, and leads
4 Article 33-1: The parties to any dispute, the continu-

ance of which is likely to endanger the maintenance of inter-
national peace and security, shall, first of all, seek a
solution by negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies
or arrangements, or other p e a c e f u l means of their own choice.
These procedures may be considered as exhaustive since
the term mediation may be Interpreted to include good offices
(Hans Kelsen, The Law of the United Sations /T950/ '* P* 376).
Briefly, these methods of settlement may be described as
follows: Negotiation consists in acts of intercourse initiated
by the parties to the dispute and directed toward effecting an
understanding and settlement (L. Oppenheim, International Law,
6th ed. by H. Lauterpacht, vol. 2 /194o7* p. 7) • If states
are unable or not disposed to settle their differences by
negotiation, the practice of good offices and/or mediation
may be brought into play. Here a third party is introduced.
Theoretically, good offices consists only of the action by a
third party in offering various services to bring together the
disputants, while mediation Includes also the participation of
the third party and perhaps its conduct of subsequent negotia-
tions. The other form of non-obligatory settlement, concilia-
tion, will be discussed in succeeding pages. Arbitration, an
ancient method of peaceful settlement, is defined In the Hague
Convention on the Pacific Settlement of International Disputes
of 1907 as follows: It "has for its object the settlement of
disputes between states by Judges of their own choice and on
the basis of respect for law" (United States, Statutes at
Large, vol. 36, p. 2199). In Judicial settlement, or adjudica-
tion, the judges are fixed members of a permanent bench and
thus beyond the control of the litigants.
4
5
to a different result." Through investigation, it establishes
the facts and clarifies the issues in a dispute, according to
a 1948 report of a subcommittee of the General Assembly's
Interim Committee, in order that their elucidation might con-
tribute to a settlement.6
What then are the basic characteristics of international
inquiry as a separate procedure, distinguishing it from other
methods of settlement? In the first place, the agency con-
ducting the inquiry is an international commission usually
containing some impartial members or a third party, providing
a "neutral" element; occasionally, an equal number of
representatives of both parties compose the commission.
Secondly, the final effort of the commission, which is a
report, has no binding effect. The procedure thus falls into
the category of non-obligatory or advisory methods along with
negotiation, mediation and conciliation.7 A third
characteristic is that
5 Pitman B. Potter, Introduction to the Study of Inter-

national Law, 4th ed. (192b), p. 171.
6 United Nations, General Assembly, Interim Committee,

Analysis of the Joint Suggestions of China and the United
States Concerning Suggestions for TEe Commission of Inquiry
or Conciliation, Do c 7 a / AC.l8/48” (1958)7 p. 7.
7 While the voluntary character of the report of the
commission of inquiry constitutes the most significant dif-
ference between this method and the obligatory methods of
arbitration and judicial settlement, it by no means exhausts
them. The extent of the differences between inquiry and
arbitration is further noted in a work by F. E. Smith and
N. W. Sibley who enumerate eleven "important differences"
between the Hague commissions of Inquiry and the Permanent
Court of Arbitration (International Law as Interpreted During
the Russo-Japanese War, 2nd ed. / i907A pp. 266-269).
5
the task of the commission is confined to an elucidation of
the facts and issues. If it is authorized to endeavor to
effect a settlement either by presenting recommendations in
the report or to the parties directly during the course of its
work, it no longer remains exclusively a commission of inquiry,
but becomes Instead a commission of inquiry and conciliation.
The close relationship between inquiry and conciliation de-
serves special attention. Historically, conciliation is an
outgrowth of the commission of inquiry and represents a
synthesis of inquiry with mediation, an older method of peace-
ful settlement.8 While some writers have established the
actual fusion of the two procedures at various dates before World
War I, the commission of conciliation made its official

9
appearance right after the war.9
The groundwork for the appearance of the commission of
8
Jean Salmon, "La convention europeenne pour le reglement
pacifique des differends," Revue g6n6 rale de droit international
public, vol. 30, series 3 (Jan.-Mar. 1959), ,P. 21; Henri Rolin,
L'heure de la conciliation comme mode de reglement pacifique
des litiges," European Yearbook, vol. 3 (published in 1957),
P. 5-
9
Some writers believe the union took place in the com-
mission of inquiry in the Dogger Bank incident. See, for
instance, Denys P. Myers, "The M o d e m System of Pacific Settle-
ment of International Disputes," Political Science Quarterly,
vol. 49 (Dec. 1931), PP. 555-556 and Jean GTTTTteVEeTJ
L 1evolution de la conciliation Internationale (1934), pp. 20-21.
Others regard the Bryan commissions as the point of union.
See, for instance, Arnold de Saint Seine, La conciliation
Internationale (1930), p. 33.
6
conciliation was laid during World War I by officials and
private individuals who were drafting plans for postwar peace
machinery. As explained by one writer, the satisfactory
solution of the Dogger Bank incident (1904), where the com-
mission of inquiry went beyond the task of fact-finding and
established responsibility and fixed the amount of reparations,
had attracted the attention of jurists. 10 The question was
subsequently raised as to why an organ might not be created
which, while resembling a commission of inquiry, would also
be competent to give parties recommendations which they would
be free to accept or reject?11 According to Mr. Myers, the
planners, either from a knowledge of the extended jurisdiction
of the Dogger Bank commission, from an instinct for simple
and distinguishing language, or from an urge for improvement,
devised projects for a peace league which included a "council

12
of conciliation." He pinpointed the origin of the phrase in
the English group headed by Lord Bryce. It was later embodied
in the program of the American League to Enforce Peace,
adopted at Philadelphia on June 17, 1915* In the wartime
discussions, Mr. Myers added, conciliation "acquired an
identity of its own, but never disavowed its parent, the
10 Jean G. P. Hette, op. clt., pp. 20-21.
11 Ibid.
12 Denys P. Myers. Political Science Quarterly, vol. 49

(Dec. 1931), PP. 555-55^
7
13
commission of inquiry."
The distinctive characteristic of a commission of
conciliation when it first appeared as a process of settlement
was its authority to submit proposals for settlement to the
disputants.14 As conciliation developed, its task, as stated
in the Bogota Pact of 1948, became the broader one of en-
deavoring to bring about an agreement between the parties upon
mutually acceptable terms. In practice this has meant the
actual participation by the commission in negotiations between
the parties or their agents.15 Unlike the conciliation
commission, a commission of inquiry will confine itself to an
elucidation of facts and issues.
For some reason, the distinction between the two methods
did not appear to be clear to all writers, and the terms,
13 ibid., p. 5 6 0 .
14 Norman L. Hill, "International Commissions of Inquiry

and Conciliation," International Conciliation, N o . 278 (March
1932), pp. 9-10; C. C. Hyde, The Place of Commissions of
Inquiry and Conciliation Treaties in the Peaceful Settlement
of International Disputes," British Yearbook of International
Law (1929), p. 97* This reference by Hyde was in the text of
an address given before the American Society of International
Law at its annual meeting in 1929* reprinted in the
Proceedings of the Society for 1929* PP* 144-157.
15 Such actions actually constitute mediation being con-

ducted by commissions instead of governments and would lend
weight to the views of writers who maintain that the
distinction between conciliation and mediation is minor. See,
for instance, Pitman Potter, Introduction to the Study of
International Relations, 4th ed. (1928), p . 174.
8
inquiry and conciliation, were sometimes used interchangeably. 16
Some of the confusion doubtless resulted from the similarities
in some of the characteristics of the two procedures as well
as from the fact that in practice the two functions have often
been combined and assigned to a single commission. They
remain, however, two different procedures today, so that it

17
is possible to have one without the other. A commission
'
sometimes has been authorized only to investigate, while at
other times it has been given conciliatory functions with no
specific investigatory authority. In many bilateral treaties,
the conduct of an Inquiry is at the option of the conciliation
commission.
What has been especially surprising, however, is the

16
confusion of arbitration with conciliation, even though the

recommendations of commissions of conciliation have at no time
been binding. For this reason, the name "conciliation com-
missions" given to the agencies set up by the peace treaty with
Italy in 19^7 is misleading; the decisions of these agencies are
binding on the parties. An explanation of the
choice of terms is presented by Dr. Maarten Bos in a study of
the work of one of these bodies ("The Franco-Italian
Conciliation Commission," Nordisk Tidsskrlft for International
Ret og Jus Gentium, vol. 22 / 1 9 » P. 156).
17 it is difficult to accept a different view presented
at the Bogota Conference in 19^8, that inquiry and conciliation
together constitute a single procedure. The delegate from
Mexico in the discussions of Commission III objected to a working
group's draft which listed the methods of peaceful settlement as
follows: negotiation, good offices, mediation, investigation,
conciliation, judicial procedure, arbitration. He urged that the
word and" should be substituted for the comma between the words
"inquiry, conciliation," because, he maintained, "el procedimiento
de investigacion en si solo es un procedimiento que no admiten
algunos estados" (Colombia, Ministry of Foreign Affairs, Novena
Conferencia Intemaclonal Americana: Actas £ Documentos, vol. 4,
p. 213)•
Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission.
9
In this study the words "inquiry, 11 "investigation," and

1ft
"fact-finding" are used interchangeably. On the other hand,
"observing" and "observation commission" must be differentiated
from "inquiry" and "commission of inquiry," although the
techniques and reports of the two processes are quite
similar.^ At least two distinctions have been advanced in
United Nations discussions which appear valid, especially if
used together. One of these was brought out while the Security
Council was considering a proposal to send an observation
group to Lebanon. During the discussion, the Panamanian
delegate, Mr. Illueca, made the following remarks concerning
the difference between investigation and observation:
As I understand it, the proposal is to establish

an observation group whose principal and perhaps only
function would be, under the draft resolution, to
observe any movements...on the Lebanese frontier in
order to insure that there was no infiltration / of
personnel and arms et c .
In my delegation’s view, such an observation group
would not have the authority to undertake an inquiry
18
The strained efforts in Security Council discussions
to distinguish between these terms are a consequence of voting
requirements for the initiation of certain "investigations,"
and while they are worth noting, they hardly conform to
experience or treaties (Ernest L. Kerley, "The Powers of
Investigation of the United Nations Security Council,"
American Journal of International Law, vol. 55 /Oct. 1961,
p . 912). An attempt to distinguish between the terms is made
also in the report of the Security Council’s commission on
the Laotian question (United Nations Doc. S/4236 /1959/, p. 7).
19 At times, the words "inspection" and "supervision"

are used interchangeably with "observation."
10
Into the causes and past incidents to find out whether

such infiltration has already taken place. This is the
essential distinction between an observation committee
and a committee of investigation. An observation
committee is concerned with the observation of future
events. An investigating committee is concerned with
discovering the truth about what has happened ... 20
Recalling discussions in the General Assembly at the time the
Peace Observation Commission was established, the delegate
from Panama said that the predominant consideration when an
observation group is formed must be to insure that it is not
empowered to inquire into events prior to its constitution.
To give it such authority would create a situation which
would lead to charges and countercharges, thus widening the
area of disagreement and impeding settlement. 21
While these discussions serve the purpose of identifying
an observation commission, they do not adequately distinguish
observation from inquiry because the latter process may well
include the investigation (or observation) of events which
20 United Nations, Security Council, Official Records,

13th Year, 825th meeting (1958), pp. 2-3.
21 The similarity in the reports resulting from the two

processes was noted by some members of the Special Committee
on the Balkans who pointed out that the reports of the
observation group were almost indistinguishable from the
reports of previous investigating groups [United Nations,
Organization and Procedure of United Nations Commissions:
United Nations Special Committee on the Balkans, 19^-9.X.l, p
. 19) • The Australian representative on the committee noted
that the observation posts were cross-examining witnesses and
hearing evidence from various sources just as an earlier
commission of inquiry of the Security Council had done in
fulfilling its function of ascertaining the facts (Report of
the Committee, United Nations, General Assembly, Official
Records, 3rd sess., Supp. 8 ^ / 5 7 4 / , PP. 35-36).
11
occur after Its establishment. At least a few of the
commissions set up by the United Nations, the League of Nations,
and the Organization of American States have investigated
incidents taking place at the time of their operations as well as
earlier. For this reason, in making a distinction between
observation and inquiry, it is well to consider the following ~
points of the rapporteur of the United Nations Special Committee
on the Balkans where the subject was debated at length. He noted
that the difference between observation and investigation must
be in degree rather than in kind; that an exhaustive observation
might seem to be an investigation, and a less intensified
22
investigation might be considered as an observation.
As will be seen later on, the investigative activities
constituting an Inquiry or enquete vary. Sometimes an
investigation on the spot or a formal examination of witnesses
in accordance with specified rules is expected.23 other
activities, too, may be undertaken to elucidate the facts. In
this study the term "inquiry" will be used in an inclusive or
broad sense.
22 United Nations Pub. 1949.X.l (1949), p. 20.

A distinction made in League of Nations discussions was
as follows: the functions of a commission of inspection must
"be clearly differentiated from functions of commissions of
investigation. The duty of inspection was a narrow one,
limited to verification of the parties’ compliance with the
recommendations of the Council..." (United Nations, History
and Analysis of the General Convention for Improving the Means
of Preventing war, Doc. A/AC.Id/55 /1948/, p. 7) •
23 por instance, in the famous Four-Powers Declaration

regarding the voting procedures in the Security Council, it is
quite likely that the authors used the word "investigate" to
mean the dispatch of a commission to the scene of events. See
(This footnote is completed on the following page.)
12
Only commissions relating to disputes in which all the
parties are states have been examined. The terra "dispute"
is used in its more general sense. Although the authors of
the United Nations Charter distinguished between "disputes,"
"situations," and "questions," in practice the distinction
has had little or no significance. As Secretary-General
Trygve Lie once pointed out, all three have been important
24
problems in the United Nations.
the remarks of Sir Alexander Cadogan in the General Assembly's

Ad Hoc Political Committee (United Nations, General Assembly,
Official Records, 3rd sess., part I /^Nov. 29, 19^87* p. 2 0 6).
In a number of treaties establishing bilateral
conciliation commissions, inquiry is apparently used to
refer to the specific process of the interrogation of
witnesses. The flexible nature of "inquiry" was pointed
out by the chairman of the Franco-Swiss commission (F. M.
vanAsbeck, "La procedure suivie par la commission
permanente de conciliation franco suisse, Nederlands
Ti.ldschrift voor lntemationaal recht, vol. 3 /July
1958/* pp. 21 7 -2 1 8 ).
24 United Nations Doc. A/AC.18/SC.6/1 (19^9)* p. 11.
CHAPTER II
ORIGINS OP THE CONCEPT OP

INTERNATIONAL INQUIRY
The intent and motivation of the drafters of any agree-
ment are difficult to determine even when ample documentation
exists. In view of the incomplete records of the First Hague
Conference, it would be presumptuous to attempt to state
positively why the first system of inquiry to be created was
proposed and adopted at The Hague in 1899^ However, certain
views expressed at the time of the Conference and afterward,
as well as certain international incidents during this period,
provide some insight into the origins of the concept and the
reason for its acceptance. They shed light, too, on earlier
practices upon which the delegates at 3he Hague drew in setting
up the system.
The articles on international commissions of inquiry
were one concrete result of that portion of the First Hague
Peace Conference which was devoted to devising means of pre-

p
venting war. The draft proposal for such commissions appeared
No stenographic accounts were kept of the proceedings of

the committee of examination of the third commission where
preliminary discussions on inquiry took place. Summaries are
available in James Brown Scott, The Proceedings of the Hague
Peace Conferences: The Conference of 1899 (1920), passim, and
Frederick W. kolls, The Peace Conference at the Hague (1900), pp.
2 0 3 -2 2 0 .
2 Articles 9-14 of the Hague Convention of 1899 for the
Pacific Settlement of International Disputes (United States,
Statutes at Large, vol. 32, p. 1779)•
13
14
in a document presented to the Conference by Russia, whose
Emperor had proposed the meeting, and had been prepared under
the direction of Professor Frederick de Martens, the principal
jurisconsult of the Russian Ministry of Foreign Affairs.
The records do not reveal exactly where Professor de
Martens acquired the idea of the international commission of
inquiry as outlined in the Russian draft. His Conference
remarks were confined to a general statement that the
commission of inquiry was not an innovation, but had already
proved that it could be of service in situations where states
acting
in good faith, became involved in a controversy, perhaps over

4
boundary matters. Professor de Martens’ wide experience as
an arbitrator may also help explain his sponsorship of the
project since it is reasonable to believe that he was
influenced by the difficulties of arbitral tribunals in
securing adequate factual knowledge in complex
controversies.Indeed, the Professor reportedly "was deeply
impressed with the merits and possibilities of an agency for
clearing the ground and preparing the way for the diplomatic
adjustment of disputes which involved mainly the determination
of questions of
3 Denys P. Myers, "The Commission of Inquiry," World Peace

Foundation Pamphlet Series, vol. 3 (Nov. 1913)> P. 5* The text
of the Russian draft articles may be found in James Brown
Scott, The Proceedings of the Hague Peace Conferences: The
Conference of 1899 , P. 800, and is reprinted in Appendix I of
this work.
4 Ibid., Committee of Examination, 9th meeting, June 23,

P. 730.
15
5
fact. During a lecture in Russia several months after the
conclusion of the Hague Conference, Professor de Martens made
the following statement while explaining the thought behind
the commissions:
Apres avoir etudie toutes les circonstances sur les

lieux et recueilli toutes les donnees necessalres,
cette commission adresse & ce sujet un rapport aux
deux gouvemements interesses, qul peuvent ensuite,
par voie de negotiations directes, arriver a un
accord, ou avoir recours a 1 'arbitrage si cet accord
devient impossible. 6
Of significance also in the origins of the Hague inquiry
system, may have been the unusual action by the United States
just prior to the Peace Conference in appointing a national
commission of inquiry to investigate a boundary dispute in

7
British Guiana between Great Britain and Venezuela. During
the course of the dispute, certain British actions, such as
the dispatch of naval forces to the Venezuelan coast, were
viewed in the United States as possible infringements on the
5 James Garner, op. clt., p. 528.
6 P. de Martens, La Conference de la Palx d la_ Haye,

trans. by Comte de SancTe(1900), p. 31*
7 Its influence on de Martens is suggested in the report

of the Committee on International Law at the American Bar
Association meeting in Buffalo, N. Y., August 29, 1899, shortly
after the Hague Conference. The report, dated August 15, 1899,
contained a plan for international arbitration, and in ex-
planation of a provision for an international commission of
inquiry stated: "This idea was originally suggested by the
administration of President Cleveland in reference to the
Venezuelan boundary. This was taken up by the Russian dele-
gation to the Conference and was approved by it." (The
Collected Papers of John Bassett Moore /19447, vol. 2,
pp. 203ff).
16
Monroe Doctrine.8 Before the United States could establish
that the Doctrine had or had not been violated, it was
necessary to know which party to the controversy had a valid
claim to the disputed territory. When Britain at first
refused to submit the matter to arbitration, President
Cleveland on December 17, 1895 appointed an American
commission to investigate.9 The inquiry was never made,
however, because the disputants agreed in February, 1897
to arbitrate the matter . 10 By coincidence, the arbitral
tribunal met in Paris with Professor de Martens as chairman
at the same time that the Peace Conference was assembled at
The Hague. 11
As chairman of this tribunal, Professor de Martens was
exposed to all developments in the controversy,
including
the establishment of the inquiry commission by the United
States.
8
For accounts of this dispute and American action see:
W. F. Johnson, American Foreign Relations (1916), vol. 2, pp.
107-115; John Bassett Moore, American Diplomacy (1 918),
pp. 246-250; and Alejandro Alvarez, T?he Monroe Doctrine (1924), pp.
88-91.
9 Papers Relating to the Foreign Relations of the United
States, 1o 95j vol. 1, p. 542.
10 John Bassett Moore, History and Digest of the Inter-

national Arbitrations to which the United States Has Been a Party
(l"898), vol. 5, pp. 5017-5018. Moore feels that if the
commission had reported, its conclusions might have been made
the basis of further correspondence with both governments
(American Diplomacy, p . 248).
11 The Russian statesman divided his time between the Hague

Conference and the arbitral proceedings (F. de Martens, op. clt.,
pp. 37-38).
17
He was also confronted with the staggering amount of evidence
submitted to the commission by the disputants which was

12
contained in more than 2,300 documents in three languages.
It would be hard to believe that this voluminous material--
much of it contradictory— did not impress Professor de Martens.

These two aspects of the Venezuelan case— the difficulties
with evidence and the establishment of a national commission
by the United States to conduct an impartial investigation--
may have been influential in fixing the attitude of other
delegates at the Hague Conference when international inquiry
was discussed.
A summary of the reasons why the Conference decided to
set up a system of inquiry was included in the report made by
M. Chevalier Deschamps of Belgium, rapporteur of the third
commission, to the plenary session.13 Among the points brought
out were the following: (l) that in any international dispute
there is need both for an elucidation of the facts and for time
to allow passions to subside;(2 ) that the procedure of inquiry
offered a special appeal because of its completely voluntary
character and its non-binding reports; and (3) that
12 The British case was presented in eight large volumes,

and the Venezuelan, in four. Both parties also submitted
atlases and countercases which consumed five more volumes
(F. E. Smith and N. W. Sibley, op. cit., p. 256 ).
13 James Brown Scott, The Proceedings of the Hague Peace

Conferences: The Conference of 1899_, 7th Plenary Session,
July 2 5, pp. 114-118
18
the commissions were not innovations in international
practice, but had already proved their usefulness.
The importance that Professor de Martens placed on the
commissions of inquiry as agencies to obtain facts while
simultaneously providing time for passions to subside has
already been noted. The American delegate. Mr. Holls, also
stressed this point when he later wrote about the "growing
recklessness of the sensational press in every civilized
country..." as contributing to the urgency of finding a
14 method of impartial and efficient Inquiry.
While it is impossible to gauge their precise impact,
two events which occurred not long before the first Peace
Conference, the sinking of the Maine in February 1898 and the
Schnoebele affair of 1887, may have impressed the Hague
delegates on the need for obtaining impartial facts about a
controversy and on the inadequacy of national commissions of
inquiry.^ In both of these affairs, the inquiries made by
14 Frederick W. Holls, op. cit., pp. 203-204.

15 Maurice Bokanowski, op. cit., pp. 36-37; Frederick W.
Holls, op. cit., p. 204j Albert Beaucourt, op. cit., pp. 36-39;
Andre LeRay, Les commissions Internationales c^enqu^te au
XXme s l i d e (19IOJ, pp. 33-3^; Olof Hoijer, La solution
paclflaue des lltiges Internationaux avant et depuls la
Societe des Nations (1925)> P» 60.
Thhe Maine incident involved the sinking of an American
ship in Havanna harbor by unknown causes. The Schnoebele
affair concerned an arrest on the Franco-German border, but
it was not known whether the action took place on French or
German territory.
19
the governments of the disputants resulted in contradictory
reports, and in both the lack of impartial information was
considered to have intensified the controversy. In his
1910 study of international commissions of Inquiry, M. Andre
LeRay wrote that the Maine affair delivered the coup de grace
to the national commission of inquiry. 17
Besides meeting what was widely recognized to be a need for
an agency to conduct impartial investigations in international
disputes, the procedure of international inquiry was, as M.
Deschamps reported, especially appealing to the Hague delegates
because of its voluntary character and non-binding reports.
States were to be under no obligation to submit to
investigation under the provisions in the Hague Convention and
they were to be free to act upon the commission's report as they
chose. According to Mr. Holls: "Whatever essential
effect and authority a report of the commission of inquiry may
16 While the sinking of the Maine was followed by armed

conflict between the United States and Spain, it is quite
doubtful In this writer's opinion that the existence of an
international commission of inquiry at the time would have pre-
vented it. Some writers, however, consider that the avoidance
of war was at least a possibility. See, for instance, Olof
Hoijer, op. cit., pp. 80-8l and Maurice Bokanowski, op. cit.,
p. 6.
Details of the investigations in the Maine Incident are
discussed in George Melville, "The Destruction of the Battle-
ship 'Maine'," The North American Review, vol. 193 (19H ) j
pp. 831-849.
The Schnoebele affair was eventually settled through
diplomatic negotiations.
17 Andre LeRay, op. cit., pp. 33-34.
20
have, must accrue to it through its intrinsic merit, and not
from any authority, direct or implied, based upon the provi

l8
sions of this Convention." With this voluntary character,
which Mr. Holls called "the very strength" of the system,
inquiry was not open to the objections that some Hague dele-
gates had raised toward the draft convention on arbitration

19
which was also under consideration at the conference.
M. Deschamps' remark in his report that supporters of
inquiry at the conference spoke of commissions as an old idea
rather than an innovation, was an accurate observation.
M. de Martens, for instance, frequently asserted that
commissions had proved to be useful on certain occasions in
the past. In his report, M. Deschamps also gave his own
support to the position that commissions had already proved
their worth, as follows:
We must understand each other. Mixed commissions

have long been in existence and operation. We are
striving to improve them. Nevertheless the former
mixed commissions and the present institutions are
two organizations of the same kind.20
18 Frederick W. Holls, op. cit., pp. 219-220. As a matter

of fact, the committee of examination decided to omit various
suggestions concerning details of the inquiry system solely
because it felt that the voluntary nature of commissions of
inquiry made these unnecessary (James Brown Scott, Proceedings
of the Hague Peace Conferences: The Conference of 1899,
Committee of Examination, 8th meeting, June 21, pp. 727 -7 2 9 and
report-of M. Deschamps, 7 th Plenary Session, July 2 5, p. 115).
20 James Brown Scott, Proceedings of the Hague Peace
Conferences: The Conference of 1899, Third Commission, 6th
meeting, July 19, p. 640.
21
This approach, which went hand-in-hand with the emphasis upon
the limited authority of the proposed commissions, apparently

21
was intended to avoid frightening states, Some commentators
have suggested that in view of the conservative nature of the
Conference, any proposal which would have been presented as

22
being new and bold might have been rejected.
Although an overwhelming majority of the delegates sup-
ported the proposed commissions, the Balkan delegates raised
vigorous objections which threatened the fate of the inquiry
system since unanimity was required to incorporate any pro-
posal into the final convention. Although Roumania, Greece,
and Serbia opposed the international commission of Inquiry,
they did not deny the need for an impartial fact-finding
agency. Some delegates felt that their opposition was moti-
vated by fears that, on the one hand, the commissions would
be used as a pretext by larger powers for intervening into the
internal affairs of smaller states, and, that, on the other
hand, such inquiries might reveal humiliating defects of
21 Albert Beaucourt, op. cit., p. 11.
22 Frederick ¥. Holls (op. cit., pp. 206ff) outlined

some of the reasons for the need to minimize the importance
of the commissions of inquiry ; and noted that "friends of
peace" outside the Conference, in their enthusiasm for the
proposals, nearly jeopardized their fate.
One such enthusiast was James Wood, a speaker at the 1899
Lake Mohonk Conference, who called the proposals on inquiry a
"distinct advance ... on anything ever presented" (Report of the
Lake Mohonk Conference on International Arbitration, p. 38).
22
domestic administration.
The following excerpt from the autobiographical notes of
the American delegate, Mr. Andrew D. White, deals with the
first of these fears:
It looked as if the Balkan states were likely

to withdraw from the Conference if the commission
d’enquete feature was insisted upon: they are
evidently afraid that such examining commissions
may be sent within their boundaries by some of
their big neighbors— Russia, for example— to spy
out the land and start intrigues.23
Regarding the second fear, Baron d ’Estoumelles observed
during a session of the third commission that certain delegates
feared that international inquiries which revealed administrative
23 Andrew D. White, The First Hague Conference (1912),

pp. 101-102 .
Some small states had actually been exposed to situations
where larger powers had participated in investigations on the
territory of the former. For instance, in 189^, following
reports of the Armenian massacres, demands were made in some
quarters in Great Britain that an inquiry be made. The Porte
of Turkey finally agreed to conduct a national investigation
and invited representatives of Britain, France and Russia to
accompany the group. While this inquiry should not be
considered a forerunner of the Hague system since, as N. Politis
noted (op. cit., p. 151), it did not treat a conflict between
two states but was, instead, an instrument of foreign
intervention in one state’s internal affairs, the incident
could cause some states to view with alarm any proposal for
international commissions of inquiry. For details of this
incident see, for example, G. P. Gooch, History of M o d e m
Europe 1878-1919 (1923), pp. 232-235, and Andr2”N.
Mandelstam,"La commission Internationale d'enqu§te sur 1
’incident de la mer du nord," Revue g6n6rale de droit
international public, vol. 12 (1905), pp. l8o-l8l. Ano'Eher
instance of such a practice was the inquiry in 1903 by the
Austrian-Hungarian and Russian consuls in the village of Uskub
in Macedonia to examine the complaints of the Christian
population against the Turkish authorities (ibid., p. 1 80).
23
shortcomings might offend ”the amour prop re”of a state and

24
cause humiliation. The merits of this objection were dealt
with in the following statement by Mr. Holls:
It will readily be seen that it would be

comparatively easy in any case to consider the
proposition for the appointment of a commission of
inquiry as an implied reflection upon the character
or sufficiency of some national institution or
governmental agency, with the result of creating as
much or more imbitterment of national feeling than
the very errors of fact which it was sought to
correct. More- over, this danger would very likely
be greatest where the necessity for the commission
might be most urgent, especially in states having a
comparatively brief legal and administrative
experience, or such as labor under the disadvantages
of conflicting racial and religious interests among
their population.25
In a long speech in defense of the stand of the Balkan
states, Mr. Beldiman of Roumania, the leader of the opposition,
maintained that a state's freedom of action would be severely
limited if the concept of inquiry became embodied in a formal
international agreement which one state could invoke against
another.He felt that a state might be forced by means of
moral pressure to participate in an international inquiry when
it deemed such action inadvisable. Mr. Beldiman claimed that

Conferences: The Conference of 1899* Third Commission, 16th
meeting, July 18, p. 781.
26 For details of the Balkan states' views see James

Brown Scott, Proceedings of the Hague Peace Conferences: The
Conference of 1399, Third- Commission, bth meeting, July 19,
pp. 526-237.
24
one advantage of the useful mixed commissions of the past
was that they were called into use by a "spontaneous agreement
between the governments directly interested." Furthermore,
the Roumanian delegate objected to the inclusion of a third
party on the commissions. Even a proposed amendment to
exclude matters involving honor or vital interests from
investigation was at first considered to be no safeguard. He
argued that such a clause could be used either as a pretext to
evade inquiry or else its invocation could lead to embarrassing
discussions on what constituted national interests.
Another important objection liaised against the commissions
of inquiry at the Conference was that, although the commission's
report was not binding on the parties, it might place them in
the position where they could not easily avoid arbitration.
A state shown to be right on the facts could, as it was
said, bring irresistible moral pressure on the other to agree
to arbitration where a binding decision could be obtained.
To secure unanimous approval of the proposals, the clause
excluding honor and vital interests was finally adopted
27 Ibid., pp. 7 8 1 -7 8 2 .The merits of this objection

were later discussed by James Brown Scott while commenting on
the voluntary character of the procedure: "It cannot be denied,
however, that the mere ascertainment of the fact goes far in
itself to establish responsibility, and a direct, although
moral pressure, is thus brought upon the parties 1 (The Hague
Peace Conferences of* 1899 and 1907* vol. 2 p. 267}.
N. Politis (op. cit., p. 1557 expresses this view also.
25
by the delegates. In addition, M. Leon Bourgeois, president
of the third commission, offered the following assurances to the
Balkan delegates:
All of the objections which have inspired the

delegates of Roumania, Serbia, and Greece have
repeatedly occurred to most of the members of same
committee. If they had believed that the proposals
which were adopted contained anything whatever in
impairment of the sovereignty or the dignity of any
power, great or small, these proposals would not have
received the vote of a single member.29
One result of the view expressed during the Conference
that the international commission of inquiry would not
constitute an innovation was an extended controversy about
which former international institutions actually constituted
precedents. This debate, however, was not always helpful
since it was not based upon a clear understanding of the
precise function for which inquiry had been designed in the
pacific settlement of international disputes. Without
certainty on this point, the citation of appropriate
precedents was rather difficult.
Commentaries appearing after the Hague Conference disclose
different opinions as to whether or not the commission of
28 Maurice Bokanowski’s criticism of this action was

answered by one writer by noting that these reservations "were
necessary...in order to secure the adoption of the provision
in any shape."(Jackson H. Ralston, International Arbitration
from Athens to Locarno p. 288).

Conferences: The Conference of 1899, Third Commission, 6th
meeting, July 19, p p . 645-641)7
26
inquiry might properly he regarded as an outgrowth of the
international mixed arbitral commissions. Certain writers,
following the line of thought expressed by the majority of
delegates at the Hague Conference, called the mixed commission
a "direct precedent," a "precursor" of inquiry. 3° M. LeRay
noted similarities in the two procedures, but contended that
calling mixed commissions direct precedents attributed to
them a role which was "trop ancestral."3^ Still others
regarded the Hague commissions as innovations, and one of them
frankly stated that the comparison with mixed commissions was
made at The Hague so that the new method would not frighten
anyone.32
Mixed commissions were Introduced to m o d e m history by
what has become known as the Jay Treaty in 1794 between the
United States and Great Britain, which provided for the
settlement of three disputes by means of arbitration entrusted
to three mixed commissions33 Generally speaking, international
30 Maurice Bokanowski, op. cit., p. 11; also Walther

Schucking, The International Union of the Hague Conferences
(1 918), pp. 114-115.
31 Andre LeRay, op. cit., p. 20.
32 Albert Beaucourt, op. cit., p. 11. This writer observed

that if mixed commissions with the aim of regulating frontier
incidents bear little similarity with inquiry, it is not sur-
prising that there is even less when the aim of the mixed com-
mission is to render juridical decisions where the examination
of facts is only a secondary role (ibid., p. 22). See also
Olof Hoijer, op. cit., p. 80.
33 Footnote 33 is found on the following page.
27
mixed commissions, as the name suggests, have "been composed of
one or more representatives from each disputant, usually
presided over by a neutral party.34
A careful comparison of mixed commissions of any type
with international commissions of inquiry will reveal a number
33 Historical accounts of ancient and medieval

arbitrations give only isolated instances of any bodies
resembling the mixed commissions set up by the Jay Treaty where
representatives of the disputants were members of the
commission. In ancient arbitrations the arbitrator(s) often was
a third party, such as a neutral city or the Roman Senate.
During the Middle Ages, the arbitration was often
carried out by the Pope or a king. In the few cases when a
commission was involved, the disputants generally were not
represented. Ralston cites one instance, however, of mixed
commissions set up by a number of German states in 1254 composed
of an equal number of judges from the two parties and presided
over by an umpire (Jackson H. Ralston, op. cit., pp. 153-193*
espec. p. 180). Also, see A. Merignhac, Traite theorique et
practique de 1 Arbitrage international (1895)* passim.
34 Jackson H. Ralston, The Law and Procedure of
International Tribunals, rev. ed. (1926), p. 33. The
composition and tasks of the Jay Treaty commissions were
as follows:
(l)to decide what river according to the peace treaty
between the United States and Britain was to be regarded
as the River St. Croix, two commissioners were to be
appointed, one by Britain, one by the United States, who
should agree on the choice of a third(2) by Article VI a
commission of five members, two named by each party and
the fifth by the unanimous consent of the other four, was
to determine the amount of the debts due to British
merchants by United States citizens contracted before the
peace (this commission disagreed in so many respects
that it finally suspended its operations);
(3) by Article VII of the Jay Treaty five commissioners
were appointed in the manner prescribed by Article VI,
except that the fifth was chosen by lot, to settle
complaints of American citizens of irregular and illegal
captures or condemnations of their vessels and other
property under color of authority from the British
government. Details of the operations of these
commissions may be found in John Bassett Moore, History
and Digest of the International Arbitration to which the
United States Has Been a Party, vol. 1, chapter 1.
28
of important differences.35 The major difference lies in the
character of the final reports of the two agencies. The award
of the mixed commission is binding on the parties; the report of
the inquiry commission is not binding and the parties are free
to use it as they choose.36 Another important difference
consists in the nature of the subject dealt with by the two
bodies. In general, the mixed commissions have handled legal
issues whereas the Hague commissions of inquiry were designed
to elucidate facts.37
Still another important distinction is that mixed com-
missions, as a rule, have not been regarded as investigative
bodies, whereas this is the primary task of the commission of
35
Mixed commissions have been categorized in various
ways. The French jurist, Paul Fauchille, for example,
distinguished between mixed arbitral commissions and mixed
diplomatic commissions; the latter, including the Jay Commission
on the St. Croix River and the Alabama Claims Commission,
follow a diplomatic formula, and the former a judicial formula
in procedure (Traite de droit international public, vol. 1,
part 3 /T9267,"pp7T30-63rj7- Albert Beaucourt (op. cit.,
pp. l8ff) made distinctions between mixed commissions on the
basis of their functions.
36 Ibid., p. 3 0 .
37 Two points should be noted, however. In the first

place, some mixed commissions, such as the Jay Commission on
the St. Croix River, dealt with factual matters. Secondly,
while the task of the commissions of inquiry provided for in
the Hague Convention was limited to an elucidation of the
facts, their scope was later enlarged in occasional practice
and in certain treaties to include legal issues as well. The
Bryan treaties, for example, usually provided for the sub-
mission of "any disputes...of whatever nature they may be...
for investigation and report" (Max Habicht, Post-War Treaties
for the Pacific Settlement of International Disputes' /l93l/,
pp. 1021-1022). Also, see C. C. Hyde, op. cit., p. 9d .
29
inquiry. As a matter of fact, mixed commissions have resorted
"only occasionally" to making their own investigations. 3® The
usual procedure in modern arbitration has been to rely on
evidence submitted by the governments, always voluminous with
expensive duplications and contradictory reports. 39 Important
exceptions to this general practice before 1899 include one Jay
commission and the British-Venezuelan commission of 1869 which
made their own inquiries.^0 Generally speaking, however, the
investigative function has not been carried on by mixed
commissions.
In composition also, the two types of agencies have often
differed. The mixed commissions did not always contain a
representative of a third party— a neutral element-which is
essential in the Hague inquiry system. One more difference
38 D. V. Sandifer, Evidence Before International Tribunals

(1939), P. 241.
That the idea of international tribunals making on-the-
spot investigations was given at least some consideration prior
to the First Hague Conference is shown by its appearance in
private proposals for international arbitration treaties. For
two such propositions advanced in the 19th century see W. E.
Darby, International Tribunals (1899), PP. 214, 234.
39 Curiously, m o d e m arbitration contrasts with the

ancient Greek and Roman practice where judges frequently made
on-the-spot investigations, especially in territorial disputes.
See, for example: Jackson H. Ralston, International Arbitration
from Athens to Locarno, pp. 162-163; Marcus Niebuhr Tod,
International Arbitration Amongst the Greeks (1913), PP. 110,
112; John Bassett Moore, History and Digest of International
Arbitrations..., vol. 5, p. 4629.
40 Jackson H. Ralston, The Law and Procedure of Inter-

national Tribunals, p. 205•
30
should be noted: frequently the principles of settlement were
agreed upon before the mixed commissions were instituted, and
the commissioners1 task was merely to apply these principles, a
process which has no counterpart in inquiry.41
While no mixed commission possessed precisely the
characteristics of the Hague commissions of inquiry,
similarities might be noted in isolated instances. On-the-
spot investigations, carried on by a few mixed commissions,
were of the nature contemplated by the Hague delegates for
42
their commissions of inquiry. A few instances prior to
1899 can
41 For examples, see Albert Beaucourt, op. cit., pp. 36-47

In the face of these differences between the two types of
international institutions, reference should be made to a
commission of inquiry named in the Paciflco affair of 1851
which is sometimes cited as an agency closely resembling a
modern commission. A commission composed of representatives
of the disputants, Greece and Great Britain,and a third party,
France, was named to conduct an inquiry. Since the
commission included a neutral element and possessed
Investigative functions, it resembled a modern international
commission of inquiry. Other features of the arrangement,
however, were more characteristic of mixed arbitral
tribunals. First, Greece agreed in advance to consider the
report to be binding: (2) certain principles had been
agreed uponin advance; (3) in addition to Investigating, the
commission was to fix the amount of damages. For details see
Albert Beaucourt, op. cit., pp. 23ff and Albert de Lapradelle
and N. Politis, Recuell des arbitrages lntematlonaux (1 905
)> vol. 1, pp. 580ff.
42
For details of the investigations by the Jay com-
missioners in fixing the location of the St. Croix River see
John Bassett Moore, History and Digest of International
Arbi- trations..., vol. 1, pp. lOff, and Maurice Bokanowskl,
op. cit. pp. llff. Such visits were made also by the
International Boundary Commission between the United States
and Mexico on occasion. See, for example, Proceedings,
Equitable Distribution of the Waters of the Rio 6rande, 2
vols. (1903)* passim.
31
be found where mixed commissions heard and cross-examined
witnesses, a procedure commonly employed by inquiry agencies.^3
Also, mixed commissions which included neutral parties along
with representatives of the disputants resembled in composition
the Hague agencies. In some respects, therefore, mixed
commissions, or at least a few of them, might be fairly called
forerunners of modern international inquiry. 44
* * *
While the advantages of impartial fact-finding in disputes
between states often seems obvious, the objections to inter-
national commissions of inquiry advanced at the First Hague
Conference may help explain why this procedure was not developed
45
earlier. A number of those objections would apply to large
43 d. V. Sandifer, op. cit., pp. 206-232. See also A. H.

Feller, The Mexican Claims Commissions, 1923-193^
(1935)>. p. 2 5 3, where only a few instances are listed
when witnesses appeared before the Mexican Claims
Commissions even though special rules existed for the
procedure.
44
Research after the First Hague Conference revealed
isolated instances of international agencies which might
be precedents of m o d e m inquiry. One of these has been
called the "germ of international commission’s inquiry"
(Andre LeRay, op. cit., p. 19). In the 16th century,
Scotland and England held periodic truces during which
inquiries were made into various complaints of
individuals of both countries. Six representatives
of each nationality formed a group to conduct the
investigations, and their findings were carried out.
The two aspects of this practice considered to
resemble the Hague system are: (l) the truce that allowed
time for public opinion to be calmed; (2) the concern
for impartiality in the selection of the inquiry group.
Details of the procedure are discussed in T. J.
Lawrence, International Problems and the Hague
Conferences (1908), pp. 60-61.
45 This footnote is found on the following page.
32
as well as to small powers. Furthermore, since this Conference
marked the first acceptance into general international
practice of the principle that the proffering of good offices
to disputants was to be considered a friendly act, it is not
surprising that the idea of a third state participating in an
investigation, possibly on the territory of another, had not
been widely supported . ^
One concluding observation concerning the origin of
inquiry at the 1899 Hague Conference should be made. Reaching
agreement on anything as important as a procedure for dealing
with international disputes is in any case difficult; this was
true even for a well-known procedure like arbitration or
mediation, with which states in 1899 were quite familiar. The
incorporation into the Hague Convention for the Pacific
Settlement of International Disputes of a section on a
procedure as new as inquiry was, therefore, a major
accomplishment. Despite
45 In his account of the history of arbitration Jackson

H. Ralston (International Arbitration from Athens to Locarno,
p. 2 8 7 ) comments: "It is worthy of at least passing remark
that so many centuries of warlike disputes should have passed
by before the statesmen of the world were able to discover
that it- was better to resort to a committee of investigation
to uncover the grounds of conflict before rather than after
their bloody disputes."
46 However, as early as 1840 an essay published by the

American Peace Society included the following observation:
"A nation would not be justified, in the opinion of the world,
in going to war, when there was an able and impartial umpire
to judge its case; and many a dispute would be quashed at the
outset, if it were known that the world would require an im-
partial investigation of it by able judges" (William Ladd,
Essay on a Congress of Nations / I 916/, p . 37).
33
statements to the contrary during the Conference, the Hague
delegates did in fact create something essentially new rather
than codify or elaborate upon an old procedure.
The abrupt introduction of the commission of inquiry into
the machinery of peaceful settlement without prior experience
with anything precisely like it, may explain why it has rarely
been used in the manner prescribed by the Hague delegates. As
later chapters will bring out, commissions of inquiry have
attained their greatest utility within permanent international
organizations, especially the Organization of American States,
the League of Nations, and the United Nations, rather than
within the framework of the Hague system.
CHAPTER III
THE HAGUE SYSTEM OP INQUIRY
The foundation for international inquiry as it has developed
in m o d e m international organization and in treaties since World
War I was laid by the Hague Conventions of 1899 and 1907. The
First Hague Conference established the original system, and the
Second Hague Conference, encouraged by the success of the first
test of the procedure in a dispute between Great Britain and
Russia in 1904, adopted a series of procedural rules for it.
While the Hague commissions of inquiry have been used
in only four disputes, the Conventions, still
in force, have nevertheless been influential. Many existing
treaties on inquiry or conciliation refer to the 1907 Hague
Convention for procedural rules to be used in the absence of
other arrangements, and some treaties embody specific
procedural provisions which had their genesis in the Hague Con-
ventions.1 This chapter is concerned with the system of
inquiry established at the Hague Conferences, and the four
instances of its use.
The 1899 Hague Convention outlined the competence, function,
and composition of an international commission of
1 James Nevins Hyde, "Peaceful Settlement: A Survey of

Studies in the Interim Committee of the United Nations General
Assembly," International Conciliation, No. 444 (Oct. 1948),
p. 553*
34
35
Inquiry and set forth only a few procedural rules. Regarding
the type of question the commission was authorized to handle and
the extent of the obligation of the signatories concerning
inquiry, the first Convention was disappointing to many of its
supporters. It fell short of the provisions in the Russian
draft supported by Professor de Martens, which would have
obligated signatories to use inquiry when diplomacy failed.
The Russian draft proposed that parties "agree" that in cases
involving "differences of opinion with regard to local,
circumstances" which had not been settled in diplomatic channels
and which did not affect the disputants' honor or vital interests,
they would institute an International commission of inquiry
"to elucidate the facts by means of an impartial and thorough
investigation." Despite Professor de Martens' efforts, the
final text of 1899 provided what was in effect only a
recommendation for the use of inquiry. Article 9 of the 1899
Convention read:
In disputes of an international nature involving

neither honor nor vital interests, and arising from a
difference of opinion on points of fact, the
contracting powers deem it expedient 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.
36
As M. Deschamps pointed out in plenary session, the
provision contained two exceptions to inquiry: (l) in cases
involving the honor or vital interests of the parties; and
(2 ) in instances when the parties decided that the
circumstances would not permit the procedure.^ The Hague
delegates’ cautious approach to the whole concept was
apparent throughout the negotiations leading up to these
two exceptions. Originally, they were added to the Russian
draft early in the Conference when, despite the fact that
many delegates wished to retain an obligation to resort to
inquiry, it was found necessary to abandon the obligatory
clause in order to procure unanimity for the main project.
In one matter, however, the Hague delegates enlarged the
scope of the Russian proposals. The original draft called for
inquiry in cases where differences of opinion arose "with
regard to local circumstances." In deference to the view
that this might be interpreted too narrowly, the phrase was
omitted.^
The role of the Hague Commission of inquiry is limited by
Article 9 of the 1899 Convention to elucidating the facts "by

Conferences: The Conference of l899, 7th Plenary Session,
July 2 5, p. 114
4 Ibid.
5 ibid., Committee of Examination, 15th meeting,

July 15, P. 774.
37
means of an Impartial and conscientious investigation." The
particular facts to he examined were to he defined in the
agreement establishing the commission (Article 10). Professor
de Martens emphasized that the commissioners were to make a
report about the facts of the dispute, and not to analyze them
in their entirety, make decisions, or propose solutions.^
Article 14 specifically limited the report to "a finding of
facts." Article 14 also emphasized the non-binding character
of the report by stating that the parties were left "entire
freedom" as to the effect to be given to the findings which "had
In no way the character of an award." A more explicit
provision in the Russian draft assuring disputants that the
Convention did not deny them recourse to force, such as reprisals
was, however, rejected.7
The report following an inquiry was to be signed by all
members of the commission and communicated to the parties. In
regard to this provision, Mr. Holls observed:
This, of course, does not require unanimity in

the findings of the facts, but it does require the
signature of all members...stating what members, if
any, have been able to agree as to facts, and the
exact terms of their agreement. The refusal of any
one member...to sign such a report, which...is
really...a record of proceedings, would therefore
make the entire institution nugatory....°
6 Ibid., 7th Plenary Session, July 25, p. 114.

7 Ibid., Committee of Examination, 8th and 9th meetings,
June 21 and June 23, pp. 729* 731; 7th Plenary Session, July 2 5 ,
p. 1 1 8 .
8 Frederick W. Holls, op. cit., p. 219.
38
The Convention imposed an obligation upon the parties to
cooperate with the commissioners "as fully as they may think
possible.9 An unqualified obligation in the Russian draft was
rejected because, as M. Deschamps noted, a power could not be
obligated "to furnish information which might endanger its own
security."10
The Hague commissions of inquiry were to be ad hoc
bodies set up by special agreement between the disputants.11
The method adopted for choosing the members of the commission
was the same as that devised for the selection of arbitrators.
In the absence of other arrangements, each party would name two
members and together these four would select an umpire. If
the votes should be equally divided, the choice-would fall to
a third party selected by the disputants. If disagreement
existed at this point, each party would choose a different
party and these two would select the umpire. A proposal by
Mr. Holls to Increase the number of neutral members to three
in order to give more weight to the impartial element was
rejected chiefly because it was felt that a commission of

Conferences: The Conference of 1899, Committee of Examination,
8th Meeting, June 21, p. 728.
10 Ibid., 7th Plenary Session, July 25, p. 117.
11 Frederick W. Holls observed that the agreement could be

signed by the United States President and would not need to
be submitted to the Senate in view of the non binding report
(op. cit., p. 216 ).
39
seven would be rather elaborate and expensive for the settlement
of minor difficulties.12
As stated earlier, little mention was made in the 1899
Convention of rules of procedure. At one point Mr. Eyschen of
Luxemburg drew attention to the absence of rules and argued
that some elaboration of procedure was essential to guarantee
that the rights of the parties would be projected13 He noted
that investigations might be conducted by technical men "who
will perform their duties in remote countries, who must act
quickly...and who consequently will not be able to inform
..14
themselves as to the legal difficulties. Article 10 was
eventually drafted to include a provision that the special
agreement specify the procedure to be followed as well as define
the facts to be ascertained and the extent of the powers of the
commissioners. It stipulated also that both parties must be
heard.
This 1899 system was tested on one occasion before the
Second Peace Conference in 1907• In 1904 an international

Conferences: The Conference of 1899, Committee of Examination,
8th meeting, June 21, p. 7^8,• William I. Hull, The Two Hague
Conferences and Their Contributions to International Law (1908),
p.2BF7

Conferences: The Conference of 1899, Third Commission, 6th meeting,
July 19, P* 644.
14 Ibid., p. 644 and Committee of Examination, 17th

meeting, July 19, PP. 790-791.
40
commission was appointed by Great Britain and Russia to
investigate an Incident which occurred in the North Sea on the
Dogger B a n k . ^ On October 22, 1904 during the Russo-Japanese
War, the Russian fleet, en route to the Par East, mistook
several British fishing vessels for Japanese torpedo boats and
opened fire. One British ship was sunk, another damaged,
and several trawlers killed or wounded. The English public
was outraged and demanded apologies and reparations. Some
writers observed that war was possible, especially because
antagonism had been increasing between the two states for some
time. Matters worsened because contact with the admiral in
command of the Russian fleet could not be made until his stop at
Vigo. When his report arrived, it asserted he had been
attacked by torpedo boats. The British trawlers, however,
insisted that no such boats were in the vicinity. A reminder
15 Much literature is available about this incident. The

text of the special agreement, the commission’s report, and a
description of the case appear in The Hague Court Reports (James
Brown Scott, ed.}, vol. 1 (I9l6), pp. 403-4X2 and 609- 6l6, and the
American Journal of International Law, vol. 2 (1908), pp. 929-
93b. The proceedings of the commission are in Archives
diplomatiques francais, vol. 94 (1905), PP. 450-495. Other
documents appear in Parliamentary Papers (1905)* "Russia," Nos.
2 and 3, and in British and Foreign State Papers, vol. 97, pp.
77-79 and vol. 99, pp. 921-92. See also, for example, Amos S.
Hershey, The International Law and Diplomacy of the Russo-
Japanese~¥ar (1906), pp. 217-245, which Includes descriptions of
public opinion at the time; F. E. Smith and N. W. Sibley, op.
cit., pp. 273-245; Andre" N. Mandelstam, op. cit., pp. 161-190 and
351-415; J* B. Moore, "The North Sea Incident," Report of the
11th Annual Lake Mohonk Conference on International Arbitration,
1905, PP. 143-150, and James Brownieott, Treaties for the
Advancement of Peace (1920), pp. xxv-xxvii.
41
from the French government about the availability of inter-
national inquiry and diplomatic correspondence between the
disputing governments eventually led to an agreement to
establish a commission.
After considerable controversy about its terms, the
parties signed an agreement on November 2 5, 1904 conferring on
the commission broader authority than the Hague Convention
contemplated. Great Britain had proposed that the group in-
quire into and report upon all circumstances concerning the
disaster, particularly where the responsibility rested and
the degree of blame attached to those upon whom the
responsibility was placed. The Russian government wanted to
limit the task of the commission to elucidating the facts and
fixing the responsibilities. The British view prevailed.
A commission composed of British, Russian, American,
French, and Austrian admirals subsequently met in Paris from
December 22, 1904 to February 26, 1905. Its report stated that
no torpedo boats were in the vicinity of the attack, and so
there was no justification for the action of the Russian fleet.
The findings, however, did not cast discredit upon the
Russians' military or humane qualities. Shortly after the
submission of the report, the Russian government, following
the recommendation of the commission, paid damages to the
British government.
This first use of an international commission of inquiry
42
*
under the Hague, Convention was carefully examined by many
writers. For the most part they expressed optimism about the
future of this method. In analyzing the case, however, a few
commentators criticized the agreement for giving the com-
mission broader jurisdiction than the Hague Convention pro-
vided. For instance, M. Mandelstam, the Russian writer whose
view was shared by Messrs. Bokanowski, LeRay, and Beaucourt,
maintained that giving the commission the authority to fix
blame went beyond the legitimate function of a commission of

16
inquiry. M. Mandelstam added that with this enlarged
competence, the commission resembled a tribunal and did a dis-
service to international justice. 17 On the other hand, Mr.
Politis approved the extension of authority, noting that the
dispute would have been left unsettled if the responsibility

l8
and blame had not been determined. Mr. Efremoff called the
additional authority "une grande victolre” for the cause of
peaceful settlement since national honor was obviously in the
picture.19
In spite of these criticisms, the Dogger Bank commission
16 Andre N. Mandelstam, op. cit., p. l8l.
Ibid., pp.
17 182 and 190. Also, see James Garner, op.
cit., p. 534.
18 Politis, op. cit., pp. 167-1 6 8 .
19
Jean Efremoff, "La conciliation Internationale,"
Reeueil des Cours, 1 'Academic de droit international de la
Haye, vol. 18 (1927,111), p. 21.
43
was an important step in international inquiry because of the
seriousness of the dispute and because it was widely considered
to involve the vital interests or honor of the parties. 20 Its
impact on the delegates to the 1907 Hague Conference is shown in
the following excerpt from the report made by the United States
delegates on the Conference:
A little reflection shows the reason for the great

care and consideration bestowed upon the commission
of inquiry by the recent conference. In 1899 an
institution was created which was hoped would be
serviceable. In 1907 the creation was revised and
amplified in the light of practical experience, for
the institution, theoretically commendable, had
justified its existence at a very critical moment,
namely, by the peaceful settlement of the Dogger
Bank incident...21
Besides advancing the concept of international inquiry,
the Dogger Bank case also pointed to certain shortcomings of
the method and to possible avenues of development. For one
20
Writers at the time and afterward preponderantly ex-
pressed this view. See, for example, Andre N. Mandelstam, op.
cit., p. l6l; the remarks of de Martens at the Second Peace
Conference (James Brown Scott, The Proceedings of the Hague Peace
Conferences: The Conference of 1907* vol.”?, Committee of
Examination, 1st meeting, July“ l3, p. 38l); John Bassett Moore,
Report of the Eleventh Annual Lake Mohonk Conference on
International Arbitration, pp. 143 and 146; James
W. Garner, op. cit., p. 536; James Brown Scott, Treaties for the
Advancement of Peace, p. xxvi. However, another view was
expressed by Sir Edward Fry who was the British legal assessor in
the commission of inquiry. At the 1907 Hague Conference he
observed that in his judgment, the Hull dispute did not involve
either the honor or the essential interests of the two states in
conflict (James Brown Scott, The Proceedings of the Hague Peace
Conferences: The Conference of 1907, vol. ? 7 Committee of
Examination, 1st Meeting, July 13, pp. 3ol-382).
Papers Relating to the Foreign Relations of the United
States (1907), part 2, p. 1150; also in Green H. Hackworth, Digest
of International Law, vol. 6, p. 4.
44
thing, the case showed that the method can be slow. Four
months lapsed between the attack on the British vessels and the
issuance of the report, although only six weeks of this

22
period represented the sessions of the commission. This delay,
however, was not universally criticized. It had afforded a
chance for passions to subside enough so that, even if the report had
not been acceptable, the probability of hostilities was less than
immediately after the incident.23 Since several meetings of the
commission were devoted to discussions of procedural rules, the case
also pointed to the need for having a set of such rules available in
24
advance for inquiry commissions to use. Another result
was a demonstration of the difficulty which can exist in
distinguishing between questions of fact and questions of law25.
The factual question in the Hull incident was whether Japanese
torpedo boats were present at the time of the Russian attack, and the
legal question was whether Russia was responsible for the acts of its
naval commander so that there should be reparation for damages and
he should be punished. As Mr. Garner observed: "The question of
22 N. Politis, op. cit., p. 164.
23 James W. Gamer, op. cit., pp. 536-537.
24 Frederick de Martens in James Brown Scott, The Proceedings

of the Hague Peace Conferences: The Conference of 1907, vol. 2,
Committee of Examination, 2nd "meeting, July 16,
p. 386; N. Politis, op. cit., p. 164. 25
25 Ibid., p. 166.
45
law was conditional upon the question of fact; in order to
determine the former it was necessary to determine first the
latter."2 6
Besides the Hull incident, other events drew attention to
inquiry and encouraged its development in the interim period
between the Hague Conferences. Various organizations, including
the Institute of International Law and the Interparliamentary
Union, endorsed the concept.27 Mr. Bryan began to advocate his
plan for international inquiry in 1905 . Two official developments
also stimulated interest in the process of inquiry. The substance
of the Hague commissions were embodied in the treaty on
compulsory arbitration signed in Mexico at the Second
International Conference of American States on January 2 9 ,
1902.28 Also, preliminary steps were taken during this period by
the United States and Canada to set up the International Joint
29
Commission to regulate boundary matters.
^
26
James Gamer, op. cit., p. 5 3 8 . The British view that the
questions of responsibility and blame were mere matters of fact
was, however, questionable (ibid., pp. 533-534).
27 N. Politis, op. cit., pp. 187-1 8 8 ; James Brown Scott

fed.). Resolutions of the Institute of International Law
(1 9 1 6 ), p. 161; Interparliamentary Union, Official Report of
the 14th Conference, 1906, p. 123.
28 James Brown Scott, The International Conferences of

American States, 1889-1928 (l931), pp. 102-103.
29 In 1902 Congress requested the President to invite the

British government to "join in the formation of an
international commission, to be composed of three members
from the (This footnote is completed on the following page.)
46
In a climate generally favorable to inquiry, the delegates
at the Second Peace Conference reviewed and reconsidered the
original system created in 1899* Despite the efforts of certain
delegates to expand the concept, a cautious approach again
prevailed. No amendment even slightly suggesting an alteration
of the principles established previously— especially regarding
the voluntary character of submission and of the report— was
adopted. The main contribution of the 1907 Conference to the
development of inquiry consisted in the adoption of a group of
procedural ru l es. In fact, Professor de Martens at one time
complained that the conference had profited by the experience of
the celebrated Dogger Bank inquiry only by elaborating a set of
rules and had disregarded the "most remarkable historical
lesson," namely, that recourse to inquiry is useful and desirable
in all cases.31
It is particularly interesting that two of the major
amendments which were advanced— and rejected--would merely
United States and three /representing Canada/...whose duty

/Ts7 to investigate and report upon the conditions and uses
of the waters adjacent to the boundary lines..." (C. J.
Chacko, The International Joint Commission /T932/, p. 74;
Papers Relating to the Work of the International Joint Com-
mission 71929/7 pp. 8-977
Twenty-two articles dealing with procedure were added

to the chapter on inquiry. The 1899 Convention contained only
six on the entire subject.
James Brown Scott, The Proceedings of the Hague Peace

Conferences: The Conference of 1907, vol. 2, First Commission,
3rd meeting, October 4, p . 35*
47
have incorporated into the convention previsions corresponding
to specific actions taken in the Dogger Bank inquiry. One of
these would have enabled third parties to suggest to disputing
states that they refer their differences to inquiry. T h e
amendment was rejected, purportedly because it presupposed the
adoption of another provision relating to mediation. Since this
objection could have been removed by a simple re- wording, the
real reason for the rejection of the amendment appears to have
been the determination that international inquiry should not
become a degree more obligatory than it was in l8 9 9 .33
The other amendment, strongly supported by Professor de
Martens, would have allowed the commission to establish
responsibility in controversies before them. The Russian
jurist emphasized that this did not transform the commission
into an arbitral tribunal. He compared a commission
possessing this task with an investigating magistrate (juge
d*instruction) who presents the substance of the affair and
from it sets forth "by the force of the things themselves"

84
the responsibilities.
32 Ibid., p. 860.
33 William Hull, op. cit., pp. 288-289 .

Conferences: The Conference of 1907, vol. 2, First Subcommission,
4th meeting, July 9, pp. 2l8-2l9.
A number of early commentators compared an international
(This footnote is completed on the following page.)
48
All major revisions having teen rejected, Article 9 of
the 1899 Convention emerged as Article 9 of the 1907
Convention almost in its original form. One addition merely
served the purpose of noting the desirability of using the
procedure.
Another Russian proposal at the 1907 Conference would
have linked inquiry with the Hague Court of Arbitration. As
part of a two-fold bond between the two methods, Professor de
Martens advocated a provision stating that after a commission
submits its report, the parties are "free either to conclude
a friendly arrangement, or to have recourse to the Permanent

35
Court of Arbitration at the Hague." This was rejected be-
cause it appeared to imply obligatory arbitration as a
necessary consequence of recourse to inquiry, and it was
feared this would discourage use of inquiry.36 Another
proposal to link inquiry with the Hague arbitration system,
also rejected,
commission of inquiry with the juge d finstruction in the

French courts, especially those of the opinion that the new
international procedure was a supplement to other means of
peaceful settlement rather than an independent method. Among
the discussions on this point are the following: C. Gorge,
"Lfevolution de la conciliation Internationale," Revue de
droit international et de legislation comparee, 3rd series,
vol. 7 (1926), p. 64l; Maurice Bokanowski, op. cit., p. 34;
Albert Beaucourt, op. cit., p. 31.

Conferences: The Conference of 1907j v olT2, First Subcommission,
4th meeting, July 9, pp. 218^519.
36 a. Pearce Higgins, The Hague Peace Conferences (190 9),

p. 170.
49
would have required one of the members of the commission of
inquiry in certain circumstances to be a member of the
Permanent Court of Arbitration.37
One revision in the composition of the commission of inquiry
was made in 1907. According to Article 45 of the 1907
Convention, only one of the two parties named by each disputant
can be its own national. The 1899 Convention did not contain this
specification.
In regard to procedural rules for inquiry commissions, the
1907 delegates were amenable to innovations. According to Dr.
Scott, the experience of the Dogger Bank commission suggested
the desirability of relieving future agencies of unnecessary
work and delay incident to formulating a code of procedure when
inquiry was u n d e r t a k e n. Differences arose, however, about
how extensive the code should be. As Baron Guillaume of Belgium
observed, while a "profusion of rules may, on the one hand,
arouse apprehension, despite their purely voluntary character,"
nevertheless, "working out rules of procedure is a long and
laborious task" and most states with differences "will highly
appreciate the advantage of finding in the Convention exact
rules, easy of application, which

Conferences: The Conference of 1907* vol. 2, pp. 854-855*
3® James Brown Scott, The Hague Peace Conferences of

1899 and 1907, vol. 2, pp. 25H-269."
50
they may adopt in such cases without d e l a y . "39 Among the
delegates opposing an extensive set of rules was Professor de
Martens who pointed to the risk that the report could be

40
declared invalid because of infractions. But the prevailing
view was the one expressed by Sir Edward Fry of Great Britain and
M. Fromageot of France who maintained that the Hull case revealed
the need for rules since valuable time was spent devising them.41
Finally, according to the rapporteur:
The committee has endeavored to take into account
these different considerations by writing into the
draft..., only those rules of procedure which it
believes it is really useful to recommend to the states,
clearly specifying, too, their purely voluntary
character,... in order to avoid every fear that one of
the parties may attack the report of the commission
as void, because of the violation of one or the other
of the said r u l e s . 42
Some revisions and additions were thus made to the few
rules of procedure contained in the 1899 Convention. The
rules deserve examination because many have since been

Conferences: The Conference of 1907* vol. 1, 9th Plenary
Session, October 16, p. 404.
40 Ibid., vol. 2, Committee of Examination, 2nd meeting, July

16, pp. 386-3 8 7 . In answer to Professor de Martens’ point, M.
Bourgeois of France noted that an infraction of rules which parties
might set forth in the agreement establishing the commission could
just as easily invalidate the report (William Hull, op. cit., p.
292).

Conferences: The Conference of 1907j vol. 2, Committee of
Examination, 3rd meeting, July 20, pp. 395-396.
51
Incorporated into various international instruments and, as a
code, they have become a standard reference in many inquiry
and conciliation treaties.
One of the new rules which caused some controversy
concerned the degree of and method for publicizing the work
of the commission. According to Baron Guillaume:
The committee...preferred...to provide that

publicity should not be allowed except on the
decision of the commission and with the consent of
the parties. It believed that prudence demands the
asserting of the principle of secrecy;...it will
always be easier for a commission when it deems it
possible to declare that the debates shall be open to
the public, than it would be to order the doors
closed; it would be difficult to take such a measure;
it would run the risk of being misunderstood by the
public 3 3
The result was that Articles 30 and 31 provided for secret
proceedings, consideration of decisions in private, and the
publication of minutes and documents only upon the decision
of the commission and with the consent of the parties. The
report of the commission, however, is to be read at a public
session, according to Article 34. Considerable attention was
devoted to delicate questions relating to the obligation of
disputants to cooperate with the commission. In 1899, a
general obligation that parties cooperate with the
commission "as fully as they may think possible" had been
adopted. The sentiment in 1907 was explained
43 Ibid-. P. 411.
Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission
52
as follows by Baron Guillaume:
We have retained these terms; whatever may be

our desire to see litigant states throw full light
upon the Inquiry, we do not think we should impose
an absolute obligation upon the governments to
furnish all their means of proof. A commission
might abuse this obligation and push its curiosity
beyond the necessary limits ....... 44
The question of the extent of a state’s duty to help the
commission in summoning witnesses was more complex. It was
brought out that the parties to the dispute had a moral and
legal obligation to insure the appearance of witnesses and
experts within their jurisdiction, and that they should be held
to this within the limits and means of domestic laws. 45 If
witnesses could not appear before the commission, the state
should take their depositions. As to questions which might
touch on state secrets, no provisions were adopted because it
was felt that the governments would have the same freedom of
judgment before the commission of inquiry as before their own
tribunals.^ A commission seeking witnesses or experts from
a third state, was given authority to apply directly to the
government concerned (Article 3 2 ). However, the obligation of
a third party toward such a request was acknowledged to be
different from that of a disputant. According to Baron
Guillaume:
44 Ibid., vol. 1, 9th Plenary Session, October 16, p. 406.

45 Ibid., pp. 401-404.
46 Ibid., p. 402.
47 Ibid.
53
While we believed it possible to recognize an

obligation on /the part of a disputant/ to lend its
assistance to the commission...it seemed to us,
however, necessary to adopt a qualification /in
regard to a third party/: the power to refuse this
if it believes that this appearance would threaten
its security or its sovereignty. It will be Its
own judge /in/ invoking this qualification.48
The same provisions apply when evidence is procured on-the-
spot.
Several other articles dealing with on the spot
investigations were adopted. The problem of making
arrangements for such visits arose during discussions on the
meeting place of the commission. Article 10 of the 1907
Convention provides that the agreement establishing the
commission shall determine whether the commission has authority
to change its place of meeting. Baron Guillaume explained that
while this power would be "indispensable for the statement of
the facts in dispute," his committee believed It important to
be very pru-dent because it might sometimes be dangerous for
commissioners to "go rashly to the very spot where a dispute
might have occurred a short time before.49 He added:
Intense feeling may perhaps still exist for several

weeks after the occurrence of the facts which it is
the duty of the commission to determine, and the
appearance of the commissioners— who might only too
easily be taken by public opinion to be judges--might
be of such a nature as to occasion over-excitement
of popular sentiment.
It is therefore necessary to subordinate the
48 Ibid.
49 Ibid., p. 405.
54
exercise of this power to change the meeting place to one

prime factor;' the prior consent of the parties in dispute50
According to Article 20, the commission can move to another
place only with the permission of the party on whose territory
the proposed inquiry would take place.
Unless specified otherwise, the meeting place of the
commission will he at The Hague, according to Article 11,
with the International Bureau of the Permanent Court of
Arbitration as the secretariat (Article 15). If the
commission meets at another place, a secretary-general whose
office serves as the secretariat, is to be named. The
archives of all commissions are to be deposited permanently
at the International Bureau at The Hague.
A revision of the provision of the 1899 Convention

concerning the signature of the report was also made. Instead of
providing simply that all commissioners must sign it, the revised
rule in Article 33 provides that the report is to be adopted by
majority vote and signed by all members. If one refuses to sign,
this fact is to be mentioned, but the majority report is still
valid. The new procedural provisions deal also with the methodof
questioning witnesses. Article 26 provides that the
50 Ibid. Professor de Martens, however, observed that it

appeared to be "useful to express the wish that the commissions
of inquiry should make their investigations, as far as possible,
in the very places where the incident...arose" (ibid., vol. 2 ,
First Subcommission, 4th meeting, July 9, p. 2197"!
55
president will conduct the examination and other commissioners
may submit questions. The British and American suggestion to
substitute the Anglo-Saxon method of cross-examination was
rejected because it was considered to be difficult for subjects
of countries where this procedure is not permitted.51
During the discussions which led to a new provision on
assessors, the following observation was made concerning their
role:
...Their function depends generally upon the kind of

person from whom the selection is made. If the
commission is composed of jurisconsults, the
assessors shall be real experts; if, on the contrary,
the commission is composed of specialists the
assessors shall generally be jurisconsults.
In the latter case, though without responsibility,
they will certainly be called upon to exercise a
fairly strong influence.52
The actual provision in the Convention stated only that if
they were considered to be necessary, the question of whether
.they might vote would be determined by the parties in the
special agreement.
A new article was also adopted entitling parties to
appoint special agents to serve as their representatives
(Article 14). The article further authorizes the
parties, if they wish, to designate counsel and lawyers
to present their
51 Ibid^, vol. 1, 9th Plenary Session, October 16,

pp. 409-410; James Brown Scott, The Hague Peace Conferences
of 1899 and 1907, vol. 2, p. 271.
52 James Brown Scott, The Proceedings of the Hague

Peace Conferences: The Conference of 1907» vol. 1, 9 th
Plenary Session, October 16, p. 400.
56
interests before the commission and to ask the president to
direct questions on their behalf.
The delegates were unable to decide whether it would be
easier for the disputants or the commissioners to decide what
language should be used. The final Convention provides
(Article 10) that the disputants may specify the language in
the agreement, but if they do not, the commissioners should
decide. Another new rule provides that when vacancies occur,
the method of replacement shall be the same used to appoint the
original member (Article 13). Article 57 makes the fifth
commissioner president.
A proposal was advanced by Russia to require the com-
mission to be formed within two weeks after the date of the
initial incident. It was rejected on the ground that a fixed
period might discourage recourse to inquiry and because it
raised problems about the consequences if the period should
expire.53
In view of the rather extensive code of rules which the
Second Conference adopted, it is surprising that none of the
provisions deal with the practical subject of the privileges
and immunities of the commissioners, even though
investigations on the spot were contemplated.5^
53 ibid., p. 402.
54 Hans Wehberg commented that the commissioners are en-
titled to such privileges and immunities because of the "high
character" of their duties and because they are "under certain
circumstances international judges, if only upon questions of
fact" (Cited by Walther Schucking, The International Union of
the Hague Conferences, p. 117).
57
Note should be taken of the fact that the 1907 Conference
dealt with inquiry not only in the Convention for the Peaceful
Settlement of International Disputes, but also in its
consideration of the draft convention for an Arbitral Court of
Justice. Article 18 of the project would have enabled certain
members of the Court to hold an inquiry in accord with the
provisions on inquiry of the 1907 Hague Convention.55 These
inquiry commissions would have been restricted to fact-finding
activities, despite the judicial role of the members on other
occasions.56
Opinions vary about the significance of the work of the
1907 Conference concerning inquiry. Several writers assigned
great importance on the new procedural rules; others would have
liked to see the function of the commission enlarged and
recourse to it made obligatory. M. Politis expressed pleasure
that the amendments suggested by Russia and Haiti were rejected
because he believed that the changes envisioned in them would'
have compromised the system and diminished its usefulness;
furthermore, he felt that efforts to make recourse to Inquiry
obligatory should await the acceptance of compulsory
55 The text appears in James Brown Scott, The Proceedings

of the Hague Peace Conferences: The Conference of 1907j vol. 2,
p. l M 8 . For discussion of inquiry in regard to the project
see ibid., Committee of Examination B, 4th meeting, August 24,
pp. 635-6 3 9 .
56 Hans Wehberg, The Problems of an International Court

of Justice (1918), p. 2 2 5 .
58
arbitration.57 Two points, at least, are clear: (l) The
acceptance of the additional articles on procedure was an
achievement, at least from a theoretical standpoint; and
(2 ) the rejection of other amendments showed that delegates

still approached the concept very cautiously.56
The Hague Commissions of inquiry were called into
operation three more times after 1907 and all cases concerned
maritime incidents. The Tavignano case grew out of the
actions of two Italian warships during the Turco-Italian War
of 1 9 1 2 .5 9 On January 25 , 1912, an Italian torpedo boat
seized the French mail steamer, the Tavignano, on suspicion
that it was carrying contraband. On the same day, another
Italian torpedo boat fired upon two Tunisian vessels. The
French government demanded an indemnity for these acts on the
ground that they were all committed in the territorial waters
of Tunisia. Since Italy countered that they took place on the
high seas, the question to be determined was the precise
location of the actions. On May 20, 1912, the two governments
concluded an agreement conforming to the 1907 Hague Convention
submitting the controversy to an inquiry commission. The
commissioners visited the localities and examined documents,
57 n. Politis, op. cit., pp. 183-188 .
58 Pearce Higgins, op. cit., p. 170.
59 Details and documents on the case may be found in

The Hague Court Reports, vol. 1, pp. 413-4-18.
59
but finally reported that they could not fix precisely the
location of the incidents. In view of the indefinite character
of the report, the parties agreed to arbitrate. In 1913* however,
the dispute was settled by diplomatic negotiations, Italy paying
indemnities.
The second incident, the Tiger case, concerned the
sinking of a Norwegian ship off the Spanish coast on May 7 »
1917 by a German submarine. The question to be decided by the
commission of inquiry established on the basis of the Hague
Convention of 1907 was whether the German submarine had
followed, stopped, and sunk the Tiger in or outside Spanish
territorial waters. A report was submitted on November 8, 1919.
The third case arose over the sinking of the Dutch
steamer, the Tubantia, on March 16, 1916. 61 The Dutch
government contended that the ship sank from a torpedo launched
directly from a German submarine against the Tubantia.
Germany maintained that the torpedo was aimed at a British
vessel and that through defective construction, it remained
afloat until struck by the Tubantia some days later. In an
agreement of March 30, 1921, the two governments set up a
60 United Nations, General Assembly, Interim Committee,

Analysis of Structure and Working of Arrangements of Inquiry
and Conciliation Under Existing Treaties, Doc. A/AC.18/64
1948, p.17:
61 Details and documents on the case appear in The
Hague Court Reports, vol. 2, pp. 135-145
60
commission of inquiry to ascertain the cause of the explosion.
The report sustained the Dutch contention, but insufficient
evidence was produced to show whether the torpedoing took
place knowingly or as a result of an error by the commander.
CHAPTER IV
THE BRYAN PEACE TREATIES
While the Hague Conventions created the first
comprehensive system of international Inquiry, the group of
treaties negotiated by Secretary of State William Jennings
Bryan in 1913-1914 gave the concept its strongest impetus. The
origins of many of its subsequent developments in international
organization and in bilateral and multilateral treaties are
to be found in features incorporated into the Bryan treaties.^-
In substance, the Bryan plan created on a bilateral basis
permanent commissions of inquiry, authorized to investigate
all disputes not otherwise settled and to submit reports of
a purely advisory character. During the period of
investigation, usually a year, the parties were not to resort
to war.
This stipulation led to the expression "cooling off" treaties,
although each was officially known as a "Treaty for the
Advancement of Peace."
Mr. Bryan's idea for his treaties came from a plan he
1 Manley 0. Hudson gives credit to the Bryan treaties

for the great development in Inquiry and conciliation after
World War I (The Permanent Court of International Justice,
1920-1923 /T9437, pp. 40-417^ Eugene Borel calls the treaties
the "direct forerunners" of the post World War I system
("L'Acte general de Geneve," Recueil des Cours, 1'Academie de
droit international de la Haye, vol. 27^£9 2 9 , P* 50^.
See also, for example, Max Habicht, op. cit., p. 1001.
61
62
had long supported to deal with domestic labor disputes. 2
Curiously, when he first began to advocate the compulsory
Investigation of international disputes by an impartial com-
mission in 1905, he did not know of the Hague system of
inquiry.3 Instead, his plans resulted from a projection of
certain of his objections to the compulsory arbitration of
labor disputes onto the international level. Mr. Bryan felt
that the public in the United States objected to compulsory
arbitration because it did not want to compel either party to
a dispute to comply with a decision which would adversely
affect what it considered to be its interests.4 Compulsory
investigation, he felt, would not be open to this objection
because its purpose would be only to lay before the public
2
James Brown Scott, Treaties for the Advancement of
Peace, p. xxviii.
3 A number of years after the treaties were negotiated,

James Brown Scott gave the following account of a conversation
with Bryan: "/Mr. Bryan/ explained the whole matter to me in
detail, and I said to him, 'Well, Mr. Bryan, you have excellent
authority for your proposition in the commission of inquiry of
The Hague,' to which he replied, 'What did you say? I did not
exactly catch the importance of that observation.' Whereupon
I showed him the text of the Hague Conference of 1899* to
which he replied that doubtless he should have known about it
but that he was not familiar with that institution"
(Proceedings of the American Society of International Law,
vol. 23,1929, p. 172
It was thus coincidental that Bryan's first two published
editorials advocating compulsory investigation of inter-
national disputes appeared in The Commoner on February 17 and
24, 1905 while the commission of inquiry set up by Great
Britain and Russia was dealing with the Dogger Bank incident.
^ James Brown Scott, Treaties for the Advancement of

Peace, p. xxviii.
63
the facts in a dispute. With the facts known, public opinion
would prevail upon the parties to secure an adjustment. His
plan was intended not to replace, but rather to supplement,
existing agreements on arbitration. Mr. Bryan believed that
the usefulness of arbitration was limited not only by the
exclusion in many treaties of matters concerning vital interests
or honor, but also by the fact that it was not employed at times
simply because of the fear that such questions might arise during
the proceedings.5
Mr. Bryan repeatedly emphasized three main points in
advocating his plan. These may be summarized from his remarks
on various occasions as follows:
1. A period of investigation would allow time for parties
to separate questions of fact from questions of honor and
remove misunderstanding.6 Mr. Bryan believed the chances
would be "100 to one" that both the fact and the question of
honor could then be settled without war.7
5 Interparliamentary Union, Official Report of the 14th

Conference, 1906, p. 125. Excerpts of Bryan's remarks appear
also in James Brown Scott, Treaties for the Advancement of Peace,
pp. xxx-xxxii and Denys P. Myers, World Peace Foundation Pamphlet
Series, vol. 3 (November 1913)» PP* 19-20.
6
From the statement made by Mr. Bryan to diplomatic
representatives in Washington when he presented his plan (Papers
.Relating to the Foreign Relations of the United Stapes 7 3 5 W
T pp. 8-9 and fee 'Commoner of February 24, 1905 cited also in
James Brown Scott, Treaties for the Advancement
of Peace, p. xxix).
7 Interparliamentary Union, op.cit., p. 125 .
64
2. The investigation period would give time for passions
to subside and "for reason to resume her sway— a time for

8
cooling off." Mr. Bryan argued: "If this...would do nothing
else but give time for reflection and deliberation, there

9
would be, sufficient reason for its adoption."
3. The period provided for investigation would permit
the formation and expression of public opinion, an increasingly
important force in the world.'1'0 As people become better in-
formed and as information is spread more rapidly, the period would
become more valuable for it would enable "the best
living people" to have time to exert and express themselves.11
It is interesting to note that at least the first two of
these reasons are similar in substance to those advanced by
Professor de Martens in support of international inquiry during
the First Hague Conference. The latter, however, did not publicly
express such high expectations for the system as did Mr. Bryan,
who once wrote that he thought the day of war would be past if
nations would sign his treaties.12 The
8 James Brown Scott, Treaties for the Advancement of

Peace, p. xxxvi; Papers Relating to the Foreign Relations
of the United States (1914), pp. 809.
9 Interparliamentary Union, op. cit., p. 125.
10 Papers Relating to the Foreign Relations of the United
States (1914), pp. 8-9.
11 Proceedings of the National Arbitration and Peace
Congress, 1907, PP. 357-35^ A resolution embodying the
essentials of his plan was adopted.
12 W. J. Bryan, "The Forces That Make for Peace," World
Peace Foundation Pamphlet Series, vol. 2 (October, 1912 p.
12.
65
similarity of the reasoning of the two men is all the more
striking because they had worked out their ideas independently.
Mr. Bryan advocated his plan in editorials and speeches
for eight years before he had an opportunity as Secretary of
State to negotiate treaties embodying the concept. During a
trip around the world in 1905-06 he presented his proposals
whenever the opportunity arose. To his first speech in Tokyo
in October 1905, where he claimed his plan "would do more than
any system involving an agreement in advance to abide by the
decision," Mr. Bryan received enthusiastic response. On the
last lap of his journey, he spoke in London at the Inter-
parliamentary Union Conference. Here he secured an addition to
the model treaty the group was considering for the submission
of any unsettled dispute to investigation and report before
parties resorted to hostilities.13
Part of Mr. Bryan’s plan was incorporated into the ill-
fated arbitration treaties negotiated in 1911. by President

14
Taft with France and Great Britain. These treaties provided
that all disputes not suitable for arbitration should be
referred to a six-member joint commission for an elucidation of
the facts, a definition of the issues, and a drafting
13 Interparliamentary Union, op. cit., pp. 123-125.
14 William Taft, The United States and Peace (1914),

p. 131. Bryan had called at the White House during the
negotiations and presented his plan to the President and
Secretary of State Knox.
66
of recommendations which were not to have the character of
an arbitral award. Any question concerning the justiciability
of a dispute was to he referred to this commission for its
decision. The treaties did not specify whether the decision
would be binding, and this uncertainty led the Senate to

15
strike out the entire article. In consequence of the Senate
action, the President dropped the treaties.
The adaptation of the commission of inquiry in the Taft
treaties marked a considerable departure from the character of
that process as it had hitherto been understood. In the first
place, this was the first time that such a commission was given
the power to decide such an important legal question as the
justiciability of a question. Furthermore, the commission was
authorized not only to elucidate the facts and define the
issues in a case, but also to include appropriate
recommendations and conclusions. 17 In composition, the
15 a summary of Congressional debates on the treaties

appears in "Arbitration and the United States," World Peace
Foundation Pamphlet Series, vol. 9 (1926), pp. 529-534.
16
Denys Myers, World Peace Foundation Pamphlet Series.
vol. 3 (November 1913)/ P» 17; James G a m e r , op. cit., p. 5 4 3 .
Georges Scelle in his Report on Arbitration Procedure" pre-
pared in 1950 for the United Nations International Law Com-
mission called it "an ingenious practice" (United Nations
Doc. A/CN.4/18, p. 11).
^ It has been observed that this treaty really

established a commission of conciliation. See, for example,
C. Gorge, "L'evolution de la conciliation Internationale,"
Revue de droit Internationale et de legislation compar6e, 3rd
series, vol. 7 ^1926), p. 649.
67
proposed commission, unlike the Hague body, would have consisted

of an equal number of representatives of each party, unless the
18
parties decided differently. °
After advocating his plan for eight years, Mr. Bryan
found himself as Secretary of State in a position to give it
effect. In fact, he made acceptance of the office conditional
on a promise by President Wilson to make the plan an integral

19
part of his foreign policy. Mr. Bryan had been in office
scarcely one month when he explained his plan on April 23,
1913 to the members of the Senate Committee on Foreign
Relations, who expressed general approval and promised favorable

20
consideration of any treaty embodying the idea. The
following day, thirty-six diplomatic representatives stationed
in
l8
Of course, the parties could still agree to use the
Hague system. See, for example, Theodore Marburg, "The
Arbitration Treaties of 1911," Report of the 18th Lake Mohonk
Conference on International Arbitration, 1912, p . 86
19 Dr. Scott gave the following account: "When Mr.

Wilson...was considering the formation of his Cabinet, he re-
quested an interview with Mr. Bryan...and ultimately the offer
of the Department of State was made to him....However, Bryan...
made a condition upon the acceptance of President Wilson’s offer
that Mr. Wilson...should allow him to negotiate a series of
treaties in accordance with the draft that he produced. It was a
typewritten draft of the so-called Treaties for the Advancement
of Peace. Upon Mr. Wilson's reading the draft and stating that
he would have no objection, Mr. Bryan replied that that was not
enough, that he would ask...that Mr. Wilson would make them an
integral part of his foreign policy. Upon receiving an answer
in the affirmative, Mr. Bryan consented to accept the
Secretaryship of State" (Proceedings of the American Society of
International Law 1929, pp. 171-172)
20 Denys Myers, World Peace Foundation Pamphlet Series,

vol. 3 (November 1913)> P. 20.

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WADLOW, Joan Krueger, 1 9 3 2 -

The University of Nebraska, P h .D .,1963

University Micro films , Inc., Ann Arbor, Michigan

Joan Krueger Wadlow

Presented to the Faculty of

The Graduate College in the University of Nebraska

In Partial Fulfillment of Requirements

For the Degree of Doctor of Philosophy

Department of Political Science

Under the Supervision of Professor Norman L. Hill

Joan Krueger Wadlow

Professor Norman L. Hill January 14, 1963

Associate Professor Alexander T. Fdelmann January 14, 1963

Associate Professor Carl J. Schneider January 14, 1963 Professor

Albin T. Anderson January 14, 1963

Professor Curtis . Elliott January 14, 1963

G R A D U A T E COLLEGE UNIVERSITY OF NEBRASKA

PART I— The Development of the Concept of International

Chapter 1. Introduction ......................... 1

Chapter 2. Origins of the Concept of International

Chapter 3. The Hague System of I n q u i r y ......... 34

Chapter 4. The Bryan Peace Treaties ............. 6l

Chapter 5. Inquiry in the League of Nations . .. 80

Chapter 6. Treaties on Inquiry Since 1919 . ... 114-

Chapter 7. Inquiry in the United Nations . .. . 153

Chapter 8. Inquiry in the Organization of

Chapter 9. Inquiry in International Tribunals

PART II— Conclusions and Recommendations

Chapter 10. Constitution, Authority and Results

Chapter 11. Commissions in Operation ............. 278

Selected Bibliography ................................. 305

Appendix ............................................. 326

No comprehensive examination has been made of the inter-

national commission of inquiry since the period when it was

introduced into international affairs by the Hague Peace

Conferences of 1899 and 1907 and further developed by the Bryan

treaties. Yet since this period the process of inter-

national inquiry has won a place in the world's peace machinery;

it has been used in major disputes frequently and often

constructively, and in minor controversies with even more

conspicuous successes. Because of its place in peaceful

settlement, an effort to examine its development and use and to

evaluate its roleis presently in order.

In its approach to the subject, this study is divided into

two parts. In the first portion the development of the

concept and practice of international inquiry as a means of

peaceful settlement will be described and analyzed; attention

will be directed to the various systems of inquiry which states

and international organizations have set up, emphasizing the

problems encountered both in their creation and in their

functioning. This will lead rather naturally to the second part

which will consist of an evaluation of the detailed arrangements,

presented topically, under which commissions of inquiry have

been used in specific disputes. One objective here will be to

determine the nature and extent of their

Special attention will also be given to the conditions which

may have contributed to their successes and to possible

explanations of their failures. Suggestions for improving

the procedure of international inquiry based on what the

experiences of the commissions disclose will also be made.

It is with great pleasure that I express my gratitude to