¹ While the elucidation of facts was the objective of the commissions of inquiry contemplated by the Hague Conventions of 1899, and 1907, the problem before the commission in the Dogger Bank Case was to report on a matter of law, “particularly on the question as to where the responsibihty lies and the degree of blame attaching to the subjects of the two High Contracting Parties or to the subjects of other countries in the event of their responsibility being established by the inquiry.” (Protocol of July 29, 1899, AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. II, p. 929; also Report of Commission, ibid., 931.)

Compare matter for investigation in the Tavignano, Camouna and Gaulois Cases, under agreement between France and Italy, May 20, 1912, J. B. Scott, Hague Court Reports, 417, and Report of commission, ibid., 413. See also Report of the commission of inquiry in the “Tubantia” Case, under convention between Germany and the Netherlands, of March 30, 1921, AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. XVI, p. 485.

² It is not believed that a commission of inquiry as a purely fact-finding body could do substantial injury to the states at variance through the exercise of its function.

³ It will be recalled that in the Dogger Bank Case the commission of inquiry was composed of five naval officers of high rank, in pursuance of Article I of the agreement of July 29, 1899.

⁴ In this respect the function of a commission of inquiry differs from that of a commission of conciliation. The distinction appears to be acknowledged in Article II of the General Convention of Inter-American Conciliation, of January 5,1929, which announces that: “The Commission of Inquiry to be established pursuant to the provisions of Article IV of the treaty signed in Santiago de Chile on May 3, 1923, shall likewise have the character of a Commission of Conciliation.” See also McNair‘s 4th ed. of Oppenheim, II, §lla.

⁵ On March 29, 1929, the United States was a party to twenty-three treaties providing for commissions of inquiry, of which nineteen (those with Bolivia, Brazil, Chile, China, Denmark, Ecuador, France, Great Britain, Italy, The Netherlands, Norway, Paraguay, Peru, Portugal, Russia, Spain, Sweden, Uruguay, and Venezuela) were signed in 1913 and 1914, and of which four (those with Albania, Austria, Finland and Germany) were signed in 1928. In addition thereto treaties had been signed in behalf of the United States, in 1928 and 1929 with nine other States (Belgium, Bulgaria, Czechoslovakia, Ethiopia, Hungary, Lithuania, Poland, Rumania and the Serb-Croat-Slovene State). Negotiations for similar treaties were then in progress with ten other States. Three treaties, being those with Costa Rica (signed February 13, 1914), with Guatemala (signed September 20, 1913), and with Honduras(signed November 3,1913), were superseded by the convention for the establishment of International Commissions of Inquiry between the United States and the Central American Republics, of February 7, 1923, U. S. Treaty Series, No. 717.

⁶ See in this connection, Treaties for the Advancement of Peace (between the United States and other powers negotiated by the Honorable William J. Bryan, Secretary of State of the United States), with introduction by J. B. Scott, and Comment by George A. Finch, New York, 1920. Also Philip Marshall Brown, La Conciliation Internationale, Paris, 1925, 75-90.

⁷ Declared Dr. Van Hamel, Director of the Legal Section of the League of Nations, on February 1, 1926: “In principle, a treaty of conciliation establishes, as between the parties, an obligation to submit disputes which may arise between them to a Conciliation Commission or Commissioner. The essential difference between treaties of conciliation and arbitration treaties is that under the former the parties are obliged, in the first instance, to have recourse to the procedure for conciliation, but they are not necessarily obliged to abide by its result. The proposals of a conciliation commission must be, from their nature, optional; whereas the decisions of arbiters are binding.” (Arbitration and Security Publications of the League of Nations, V. Legal. 1926. V. 14.)

⁸ U. S. Treaty, Vol. III , 2607, 2612.

⁹ Ibid. See in this connection “The International Joint Commission between the United States and Canada,” by R. A. MacKay, AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. XXII, pp. 292, 308.

¹⁰ See Charles‘ Treaties (Senate Doc. 1063, 62 Cong., 3 Sess.) 380 and 385, respectively.

¹¹ For the text of Article XV see U. S. Treaty, Vol. III, 3340.

¹² See proposals of the Norwegian and Swedish Governments concerning commissions of arbitration and conciliation, League of Nations, First Assembly, First Committee Minutes, 75, and 83 respectively. See also Swedish explanatory statement, ibid., 82

¹³ League of Nations, Records of the Third Assembly, Plenary Meetings, 1922,199-200. See also report of M. Adatci, Rapporteur of the First Committee, ibid., 196.

See in this connection McNair‘s 4th ed. of Oppenheim, II, §lld; also “La Procédure de Conciliation devant la Société des Nations,” by Charles de Visscher, Rev. Droit Int., 3rd Series, IV, 21; A. J. Toynbee, Survey of International Affairs, 1924, London, 1926, 64-73.

See also historical statement by Dr. Arroyo Parejo, of Venezuela, on Dec. 17, 1928, before the Commission of Conciliation of the International Conference of American States on Conciliation and Arbitration. Dr. Parejo declares that “the original idea of the conciliatory method had its origin in America.” He adverts to Article III of the treaty between Greater Colombia and Peru, of July 6, 1822 (William R. Manning, Arbitration Treaties among the American States, 1924,1), and also to Article XVI of the Treaty of Perpetual Union, Alliance and Confederation signed at the Panama Conference on July 15,1926 (International American Conference, Reports of Committees and Discussions thereon, Historical Appendix IV, Washington, 1890,187). It is believed, however, that the idea of conciliation found expression in the treaty or truce between Denmark and Sweden, of April 23, 1512 (Rydberg, Sverges Traktater, III, 570, referred to in C. E. Hill‘s “Danish Sound Dues,” 1926, p. 44.)

¹⁴ Article V, U. S. Treaty Series, No. 717.

¹⁵ Article V, treaty of conciliation and judicial settlement between Italy and Switzerland, September 20,1924, League of Nations Treaty Series, No. 834; Article XIV, conciliation convention between Norway and Sweden, June 27, 1924, ibid., No. 717.

¹⁶ Article VIII, arbitration convention between Germany and Belgium (initialled), October 16, 1925, being Annex B of Final Protocol of the Locarno Conference, 1925, SUPPLEMENT TO AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. XX, pp. 25, 27.

¹⁷ Article XVIII of Bilateral Conciliation Convention (Convention c), Annex 2, to Report of the Third Committee to the Assembly (Rapporteur: N. Politis), on Pacific Settlement of International Disputes, Non-aggression and Mutual Assistance, Publications of League of Nations, IX. Disarmament, 1928. IX, 12.

¹⁸ Article VI, General Convention of Inter-American Conciliation, The International Conference of American States on Conciliation and Arbitration, Washington, December 10, 1928—January 5, 1929, Government Printing Office, Washington, 1929, p. 12.

¹⁹ Article VI, conciliation convention between Chile and Sweden, March 26, 1920, League of Nations Treaty Series, No. I l l ; Article III, treaty for the establishment of a peace commission between Great Britain and Chile, March 28,1919, Brit, and For. St. Pap., CXII, 717, 718. See also Article III, General Convention of Inter-American Conciliation, January 5, 1929.

²⁰ Article XVIII, Treaty of Arbitration and Conciliation between the Swiss Confederation and the German Reich, December 3, 1921, League of Nations Treaty Series, No. 320; also Article XIX, Arbitration Convention between Germany and Belgium, initialled at Locarno, October 16, 1925, being Annex B, to Final Protocol of the Locarno Conference, 1925, SUPPLEMENT TO AMERICAN JOURNAL OP INTERNATIONAL LAW, Vol. XX, pp. 21, 30.

²¹ Article XIII, Convention between the United States and the Central American Republics for the Establishment of International Commissions of Inquiry, February 7, 1923, U. S. Treaty Series, No. 717.

²² Thus, it is provided in Article III of the Convention between Norway and Sweden Concerning the Establishment of a Conciliation Commission, June 27, 1924: “The Commission shall be composed of five members. Each Party shall appoint two members, one of which may be a national of the appointing State. The fifth member, who shall act as chairman of the Commission, shall be a national of a State not otherwise represented on the Commission. He shall be appointed jointly by the Parties. Should the Parties be unable to agree, the chairman shall, at the request of one of the Parties, be appointed by the President of the Permanent Court of International Justice, or, should the latter be a national of one of the Contracting States, by the Vice-President of the Court.

“The Commission shall be appointed within six months after the ratifications of the present Convention have been exchanged.” (League of Nations Treaty Series, No. 717.)

See also Article IV of Treaty to Avoid or Prevent Conflicts between the American States, of May 3,1923, U. S. Treaty Series No. 752; also Article VII of League of Nations Model Bilateral Conciliation Convention of 1928.

²³ Article IX, U. S. Treaty Vol. Ill, 2612.

²⁴ Article III, League of Nations Treaty Series, No. 887. It was also provided that the Commissioner should not be domiciled within the territory, or employed in the service of either contracting party.

²⁵ Article VIII of arbitration convention between Germany and Belgium, initialled October 16, 1925, SUPPLEMENT TO AMERICAN JOURNAL OP INTERNATIONAL LAW, Vol. XX, p. 27.

²⁶ Article XII, ibid., 28. According to Article IX: “Failing any special provision to the contrary, the Permanent Conciliation Commission shall lay down its own procedure, which in any case must provide for both parties being heard. In regard to enquiries the commission, unless it decides unanimously to the contrary, shall act in accordance with the provisions of Chapter III (International Commissions of Enquiry) of the Hague Convention of the 18th October, 1907, for the Pacific Settlement of International Disputes.”

²⁷ U. S. Treaty Series, No. 752.

²⁸ Article I. See also Article XV.

²⁹ Article XIII.

³⁰ Article II.

³¹ Article IV of Convention of May 3,1923. According to that Article: “The fifth shall be chosen by common accord by those already appointed and shall perform the duties of President. However, a citizen of a nation already represented on the Commission may not be elected. Any of the Governments may refuse to accept the elected member, for reasons which it may reserve to itself, and in such event a substitute shall be appointed, with the mutual consent of the Parties, within thirty days following the notification of this refusal. In the failure of such agreement, the designation shall be made by the President of an American Republic not interested in the dispute, who shall be selected by lot by the Commissioners already appointed, from a list of not more than six American Presidents to be formed as follows: each Government party to the controversy, or if there are more than two Governments directly interested in the dispute, the Government or Governments on each side of the controversy, shall designate three Presidents of American States which maintain the same friendly relations with all the Parties to the dispute.”

³² Article IV of General Convention of Inter-American Conciliation, January 5, 1929.

³³ ibid.

³⁴ ibid.

³⁵ Article VI.

³⁶ Article XI.

³⁷ Article IX. It is provided in Article VIII that the Commission of Conciliation shall “establish its rules of procedure,” and that “in the absence of agreement to the contrary, the procedure indicated in Article IV of the Treaty of Santiago de Chile on May 3,1923, shall be followed.” That Article declares that the Commission “shall itself establish its rules of procedure.” There is recommended for incorporation therein the provisions contained in Articles IX, X, XI, XII and XIII of the convention between the United States and the Central American Republics of February 7, 1923 (U. S. Treaty Series, No. 717). Article X provides that “during the investigation the Parties shall be heard and may have the right to be represented by one or more agents and counsel.” Article XII provides in part that“the inquiry shall be conducted so that both Parties must be heard,” and that “consequently, the Commission shall notify each Party of the statements of fact submitted by the other, and Bhall fix periods of time in which to receive evidence.”

³⁸ Statement made on January 3, 1929, before the Commission on Conciliation of the International Conference of American States on Conciliation and Arbitration.

³⁹ Statement made before the same Committee of the Conference on January 3, 1929.

⁴⁰ U. S. Treaty Series, No. 752.

⁴¹ Statement made on January 3, 1929, before the Commission on Conciliation of the International Conference of American States on Conciliation and Arbitration. Mr. Hughes also said: “Must investigation always precede conciliation? In our sub-committee we thought not. Of course, very often, perhaps most of the time, investigation would precede conciliation, but it may happen that the parties could be brought to an accord without the long and expensive inquiry which would be necessary in following out to ultimate conclusion the procedure of the Gondra Treaty. There is no reason why, if the parties can be brought to a settlement, it should not be done. There is no reason why we should not have machinery for that purpose, in the interest of peace, or why we should have a long inquiry, perhaps into a very complicated problem, before conciliation can be begun.”

See also statements before the same Committee of Dr. Varela of Uruguay, of Dr. Gutiérrez of Cuba, and of Dr. Alfaro of Panama.

⁴² The International Conference of American States on Conciliation and Arbitration (Washington, December 10, 1928-January 5, 1929), 90.

⁴³ Second stipulation.

⁴⁴ Fifth stipulation.

⁴⁵ ibid.

⁴⁶ Sixth stipulation.

⁴⁷ Eighth stipulation. By this stipulation the parties “bind themselves to suspend all hostilities and to stop all concentration of troops at the points of contact of the military outposts of both countries, until the commission renders its findings.”

⁴⁸ See “The Pathway of Peace,” an address delivered by Charles E. Hughes before the Canadian Bar Association, at Montreal, September 4,1923, published in volume of addresses by that author entitled The Pathway of Peace, New York, 1925, 3, 16-17; also observations of Mr. Hughes on arbitration and conciliation at the Sixth International Conference of American States, Report of the Delegates of the United States of America to the Sixth International Conference of American States (held at Habana, Cuba, January 16 to February 20, 1928), Washington, 1928, 22-25.