Maine, pp. 207-228—Phillimore, III. §§ 3-5—Twiss, II. § 7—Lawrence, § 220—Moore, VII. §§ 1065-1068—Taylor, §§ 359-360—Wheaton, § 73—Bluntschli, §§ 483-487—Heffter, §§ 107-108—Bulmerincq in Holtzendorff, IV. pp. 17-30—Ullmann, §§ 152-153—Bonfils, Nos. 9321-9431—Despagnet, Nos. 471-476—Pradier-Fodéré, VI. Nos. 2588-2593—Mérignhac, I. pp. 429-447—Rivier, II. § 58—Nys, III. pp. 59-61—Calvo, III. §§ 1682-1705—Fiore, III. Nos. 1199-1201, and Code, Nos. 1248-1293—Martens, II. § 103—Holls, The Peace Conference at the Hague (1900), pp. 176-203—Zamfiresco, De la médiation (1911)—Politis in R.G. XVII. (1910), pp. 136-163.
Occasions for Good Offices and Mediation.
§ 7. When parties are not inclined to settle their differences by negotiation, or when they have negotiated without effecting an understanding, a third State can procure a settlement through its good offices or its mediation, whether only one or both parties have asked for the help of the third State or the latter has spontaneously offered it. There is also possible a collective mediation, several States acting at the same time as mediators. It is further possible for a mediatorial Conference or Congress to meet for the purpose of discussing the terms of an understanding between the conflicting parties. And it must be especially mentioned that good offices and mediation are not confined to the time before the differing parties have appealed to arms; they can also be offered and sought during hostilities for the purpose of bringing the war to an end. It is during war in particular that good offices and mediation are of great value, neither of the belligerents as a rule being inclined to open peace negotiations on his own account.
Right and duty of offering, requesting, and rendering Good Offices and Mediation.
§ 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, as a rule, the duty of the conflicting parties themselves to ask or to accept a third State's good offices and mediation. But by special treaty such duty can 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,[9] before resorting to arms, to ask for the 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 Conventions for the peaceful settlement of international differences have laid down some stipulations respecting the right and duty of good offices and mediation, which will be found below in § 10.
[9] But Italy did not comply with this stipulation before she declared war against Turkey in September 1911.
Good Offices in contradistinction to Mediation.
§ 9. Diplomatic practice frequently does not distinguish between good offices and mediation. But although good offices can easily develop into mediation, they must not be confounded with it. The difference between them is that, whereas good offices consist in various kinds of action 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 can also consist in advice, in submitting a proposal of one of the parties to the other, and the like, but they never take part in the negotiations themselves. On the other hand, the mediator is the middleman who does take 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.
Good Offices and Mediation according to the Hague Arbitration Convention.
§ 10. The Hague Convention for the peaceful settlement of international differences[10] undertakes in articles 2-8 the task of making the signatory Powers have recourse more frequently than hitherto to good offices and mediation; it likewise recommends a new and particular form of mediation. Its rules are the following:—