Right and duty of offering, requesting, and Good Media tion. being inclined to open peace negotiations on his own account. § 8. As a rule, no duty exists for a third State to offer its good offices or mediation, or to respond to a request of the conflicting States for such, nor is it, rendering as a rule, the duty of the conflicting parties themOffices and selves to ask or to accept a third State's good offices and mediation. But by special treaty such duty may be stipulated. Thus, for instance, by article 8 of the Peace Treaty of Paris of March 30, 1856, between Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, it was stipulated that, in case in the future such difference as threatened peace should arise between Turkey and one or more of the signatory Powers, the parties should be obliged, before resorting to arms, to ask for mediation of the other signatory Powers. Thus, further, article 12 of the General Act of the Berlin Congo Conference of 1885 stipulates that, in case a serious difference should arise between some of the signatory Powers as regards the Congo territories, the parties should, before resorting to arms, be obliged to ask the other signatory Powers for their mediation. And lately the Hague Convention for the peaceful settlement of international differences laid down some stipulations respecting the right and duty of good offices and mediation, which will be found below in § 10. Good § 9. Diplomatic practice frequently does not discontradistinguish between good offices and mediation. But tinction to Media although good offices may easily develop into mediation. tion, they must not be confounded with it. The difference between them is that, whereas good offices consist in various kinds of actions tending to call negotiations between the conflicting States into existence, mediation consists in a direct conduct of negotiations between the differing parties on the basis of proposals made by the mediator. Good offices seek to induce the conflicting parties, who are either not at all inclined to negotiate with each other or who have negotiated without effecting an understanding, to enter or to re-enter into such negotiations. Good offices may also consist in advice, in submitting a proposal of one of the parties to the other, and the like, but they never interfere in the negotiations themselves. On the other hand, the mediator is the middleman who takes part in the negotiations. He makes certain propositions on the basis of which the States at variance may come to an understanding. He even conducts the negotiations himself, always anxious to reconcile the opposing claims and to appease the feeling of resentment between the parties. All the efforts of the mediator may often, of course, be useless, the differing parties being unable or unwilling to consent to an agreement. But if an understanding is arrived at, the position of the mediator as a party to the negotiation, although not a participator in the difference, frequently becomes clearly apparent either by the drafting of a special act of mediation which is signed by the States at variance and the mediator, or by the fact that in the convention between the conflicting States, which stipulates the terms of their understanding, the mediator is mentioned. Offices and to the § 10. The Hague Convention of 1899 for the Good peaceful settlement of international differences undertakes in its articles 2-7 the task of making the according signatory Powers have recourse more frequently than Hague Arhitherto to good offices and mediation, and of creating Convena new and particular form of mediation. Its rules tion. are the following: bitration (1) The signatory Powers agree to have recourse, before they appeal to arms, as far as circumstances allow, to good offices or mediation (article 2). And independently of this recourse, they consider it useful that signatory Powers who are strangers to the dispute should, on their own initiative, offer their good offices or mediation (article 3). A real legal duty to offer good offices or mediation is not thereby created; the usefulness of such offer only is recognised. In regard to the legal duty of conflicting States to ask for good offices or mediation, it is obvious that, although literally such duty is agreed upon, the condition "as far as circumstances allow makes it more or less illusory, as it is in the discretion of the parties to judge for themselves whether or not the circumstances of the special case allow their having recourse to good offices and mediation. " (2) The signatory Powers agree that (article 3) a right to offer good offices or mediation exists for those of them who are strangers to a dispute, and that this right exists also after the conflicting parties have appealed to arms. Consequently, every signatory Power, when at variance with another, be it before or after the outbreak of hostilities, is in duty bound to receive an offer made for good offices or mediation, although it need not accept such offer. And it is especially stipulated that the exercise of the right to offer good offices or mediation can never be regarded by the conflicting States as an unfriendly act (article 3). It is, further, stipulated (article 27) that the signatory Powers consider it their duty to remind the parties in a serious conflict of the permanent Court of Arbitration, and that the advice to have recourse to this Court can only be considered as an exercise of good offices. (3) Mediation is defined (article 4) as reconciliation of the opposing claims and appeasement of the feelings of resentment between the conflicting States, and it is specially emphasised that good offices and mediation have exclusively the character of advice. (4) The acceptance of mediation—and, of course, of good offices, which is not mentioned-does not (article 7), have the effect of interrupting, delaying, or hindering mobilisation or other preparatory measures for war, or of interrupting military operations when war has broken out before the acceptance of mediation, unless there should be an agreement to the contrary. (5) The functions of the mediator are at an end (article 5) when once it is stated, either by one of the conflicting parties or by the mediator himself, that the means of reconciliation proposed by him are not accepted. (6) A new and particular form of mediation is recommended by article 8. Before appealing to arms the conflicting States choose respectively a State as umpire, to whom each intrusts the mission of entering into direct communication with the umpire chosen by the other side for the purpose of preventing the rupture of pacific relations. The period of the mandate extends, unless otherwise stipulated, to thirty days, and during such period the conflicting States cease from all direct communication on the matter in dispute, which is regarded as referred exclusively to the mediating umpires, who must use their best efforts to settle the difference. Should such mediation not succeed in bringing the conflicting States to an understanding, and should consequently a definite rupture of pacific relations take place, the chosen umpires are charged with the joint task of Value of Good Offices ation. taking advantage of any opportunity to restore peace. § 11. The value of good offices and mediation for the amicable settlement of international conflicts, be and Medi- it before or after the parties have appealed to arms, cannot be over-estimated. Hostilities have been frequently prevented through the authority and the skill of mediators, and furiously raging wars have been brought to an end through good offices and mediation of third States.1 Nowadays the importance of these means of settlement of international differences is even greater than in the past. The outbreak of war is under the circumstances and conditions of our times no longer a matter of indifference to all except the belligerent States, and no State which goes to war knows exactly how far such war may affect its very existence. If good offices and mediation interpose at the right moment, they will in many cases not fail to effect a settlement of the conflict. The stipulations of the Hague Convention for the peaceful adjustment of differences have greatly enhanced the value of good offices and mediation by giving a legal right to Powers, strangers to the dispute, to offer their good offices and mediation before and during hostilities. See the important cases of mediation discussed by Calvo, III. §§ 1684-1700, and Bonfils, Nos. 936-942. From our own days the case of the Dogger Bank incident of 1904 may be quoted as an example, for it was through the mediation of France that Great Britain and Russia agreed upon the establishment of an Inter national Commission of Inquiry. (See p. 7, note 2.) And the good offices of the President of the United States of America induced Russia and Japan, in August 1905, to open the negotiations which actually led to the conclusion of the Peace of Portsmouth on September 5, 1905. |