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The Expressive Instinct
 The Expressive Instinct
How Imagination and Creative Works Help Us
Survive and Thrive

Girija Kaimal
 Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press 2023

All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

Library of Congress Cataloging-in-Publication Data

Names: Kaimal, Girija, author.
Title: The expressive instinct : how imagination
and creative works help us survive and thrive / by Girija Kaimal.
Description: New York, NY : Oxford University Press, [2023] |
Includes bibliographical references and index.
Identifiers: LCCN 2022027313 (print) | LCCN 2022027314 (ebook) |
ISBN 9780197646229 (hardback) | ISBN 9780197646243 (epub) |
ISBN 9780197646250 (online)
Subjects: LCSH: Creative ability—Psychological aspects. |
Creation (Literary, artistic, etc.)—Psychological aspects.
Classification: LCC BF408 .K2236 2022 (print) | LCC BF408 (ebook) |
DDC 153.3/5—dc23/eng/20220712
LC record available at https://lccn.loc.gov/2022027313
LC ebook record available at https://lccn.loc.gov/2022027314

DOI: 10.1093/​oso/​9780197646229.001.0001

1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
For Miu and Lails
Contents

List of figures  ix
Foreword  xi
Christopher Bailey

Introduction  1

I . UN DERSTA NDING TH E L AY OF TH E L AND:

T HEO R I ES AN D H ISTORICAL PE RS PE CTIVES ON
C REAT I VE SELF-​E XPRE SS ION
1. Why does creative self-​expression matter?  15

2. Philosophical perspectives and theories about creative

self-​expression and well-​being  29

3. What our ancestors knew: Indigenous and traditional arts

practices and health  46

I I . EMB O DI ED E XPRE SS ION: WH AT WE KNOW

A B O UT T HE H UMAN BODY AND ITS PH YSIOLOG IC AL AND
PSYCHO LO GI CAL RE S PONS E S TO E XPR ESSIVE
E X PER I ENCES
4. Receptive and expressive experiences: How we see, create, and
make narrative sense of it all  67

5. Evoking the protector within: Neurobiological indicators and

creative self-​expression  85

6. Tracking creative self-​expression through imaging tools  100

I I I . WEAT HER ING STORMS : FACILITATING

C REAT I VE SELF - E
​ XPRE SS ION TO COPE WITH STRESS,
A DVERSI TY, AND TRAU MA
7. Creative self-​expression by ourselves and with others  115

8. When words are not enough: Creative self-​expression and

adversity in the developing years of childhood and youth  133
viii Contents

9. Navigating adversity in adulthood through creative

self-​expression  150

I V. PR EPAR EDNE SS : IMPLICATIONS FOR CURRENT

A ND FUT UR E WORK IN ARTS , H E ALTH , AND WEL L- B
​ EING
10. The prepared warrior: Creative expression, health, and
well-​being in modern society  173

11. What lies ahead? Research and practices for the future  191

Afterword  207
Acknowledgments  211
Glossary  213
References  219
Index  243
Figures

I.1. Terrain map for the book 4

I.2. Extraordinariness of the ordinary 6
1.1. Imaginal Naturescapes 16
1.2. Art as the visual metaphor that connects to ourselves and to others 27
2.1. What if Black holes can “hold” everything 30
2.2. The continuum from hedonism to eudaimonia in creative works 38
3.1. Floral floor decoration called pookalam made during the harvest
festival of Onam 47
3.2. Contemporary group kolam rangoli 53
3.3. Conceptualizing human needs as interwoven aspects rather than as a
hierarchy 60
4.1. Unfurled 68
4.2. Parts of the cerebral cortex and key inner brain structures 73
4.3. Imagination, expression, and the human life story 79
4.4. Cycle of receptive and expressive experiences 83
5.1. The interconnectedness of all things 86
5.2. Stages of making a quilt together 93
5.3. Molecular structures that shape our mental states: dopamine, serotonin,
oxytocin, and endorphin 95
6.1. Scribble-​doodle 101
6.2. Setup of fNIRS headband for data collection 107
7.1. Prismatic PoV 116
7.2. Different arts and health professions and areas of impact 120
7.3. An open studio table where a study participant works on a mixed media
collage 125
7.4. Adaptive Response Theory (ART) framework in art therapy 127
7.5. Adaptive Response Theory (ART) processes, mechanisms, and outcomes 129
8.1. Artwork by a pediatric oncology patient 134
8.2. Developmental stages of drawing 136
8.3. Artwork by an adjudicated youth indicating undetected developmental
delays 138
x List of Figures

8.4. Children in Malawi painting using bird feathers 145

8.5. Artwork by a teenage pediatric oncology patient 147
9.1. A shell’s journey 151
9.2. Artwork by a patient undergoing radiation treatment 160
9.3. Artwork by a patient undergoing cancer treatment 160
9.4. Mask made by a service member 164
9.5. Artwork created by a service member in memory of a comrade killed in
action 164
10.1. August 2020: Monarch on the beach 174
10.2. My study/​io space for creative and restorative activities 183
10.3. Continuum of health with receptive and creative self-​expression 186
11.1. Artwork made in virtual reality 192
11.2. Art-​making in VR 199
A.1. All the office I need is a writing space in nature 208
Foreword

When Mel Brooks was once asked to explain why a joke was funny, he replied,
“Explaining a joke is a little like vivisecting a frog. You may understand after-
wards how it works, but the frog dies.”
In fact, at least in the first years of the Arts and Health program at the
World Health Organization (WHO), I was prepared for the skepticism the
work sometimes received from public health professionals and colleagues, but
was somewhat surprised at the resistance shown by some artists: “Why do
I need to measure what I do? I know if it works or not; I can feel it with the
audience.” Of course the simplest response to that is to remind the artist that
when policymakers are deciding where to place taxpayers’ money in national
budgets, an individual’s feeling is probably not going to be enough justifica-
tion. Part of my job at WHO is to help artists understand that measurement
and evidence is not an unnecessary distraction; particularly when applied to
health care settings, in the home, the community, or the health facility, meas-
urement is essential. On face value, why would an insurance company pay for
a clown in a hospital? Well, what if we could show that that clown improved
recovery time from pediatric surgery, saving significant amounts of money
the insurance company would have had to cover?
Yet at the same time, if we feel joy in experiencing the anticipation of a piece
of music building to a climax, and feel the awe and exaltation of reaching that
penultimate moment in the performance, with an extra delight in that it wasn’t
exactly what our minds were expecting, but still a complete fulfillment, does
that joy lessen the experience if we know that each of these emotional states
within this performance can be linked to specific biochemical reactions in the
brain, as outlined in Chapter 5 of this book on the neurobiological outcomes
underlying self-​expression? Does Dr. Kaimal’s discussion at the beginning
of the book on the philosophical underpinnings of the health benefits of the
arts create too lofty a pedestal for something that was so commonplace in our
lives? Her chapter on the primeval origins of these set of creative and thera-
peutic practices, and their continued use by indigenous populations, aligns
with the WHO which always has had a special focus on serving the excluded
and marginalized, and often indigenous populations. In our contemporary
society, in this particular case, we are not bringing solutions to them, instead
that they are reminding us of what we have lost and they have continued
xii Foreword

practicing. And lastly, her discussions on how arts can support childhood de-
velopment, as well as recovery from traumatic experiences, physical, mental,
or social, as well as its use for older populations, speaks to immediate needs
today. Even if an artform is something we cannot relate to personally, we all
know someone who could benefit, and eventually, inevitably, we will too.
But, still, given this, why is there often resistance? Many of us grew up in
the age of psychoanalysis, in which we believed that speaking about some-
thing out loud, understanding the inner mechanisms, could resolve neuroses,
hidden conflicts, and uncontrolled emotional reactions. But the downside, we
might think, is this: What if we actually liked those uncontrolled emotional
reactions? What if they gave us pleasure? We fear that understanding some-
thing may lessen our spontaneous enjoyment of it.
Back in the day, when I was a fledgling actor at the American Academy of
Dramatic Arts, I had a teacher whose ultimate criticism of a student’s perfor-
mance was a single stinging phrase: “You’re thinking.” We were hammered
with the notion that if we became consciously aware of what we were doing, it
would feel artificial to the audience. In hindsight, I understand this approach.
When they are growing up, children naturally live “in the moment” and
“spontaneously” react, and every situation is charged with urgency and com-
mitment, good, bad, or indifferent. Even when they are bored, children are
REALLY BORED. And throughout our upbringing, in almost every culture
around the world, this spontaneity and energy is systematically drummed out
of us to prepare us for the adult world. It is thought that if we reacted truth-
fully, fully, and in the moment in all situations, we would not be able to func-
tion in adult society. So, in a sense, the process of learning to act is actually a
process of unlearning the accumulated suppression of these abilities we had
naturally as a child.
Now, many decades later, after a life spent fully exploring both artistic ex-
pression and evidence-​based health in resource-​poor settings around the
world, I no longer see knowledge and spontaneity as mutually exclusive. Nor
do I see arts and health as mutually exclusive. Being aware of how something
works is not the same thing as being self-​conscious about it. One can be aware
of a dopamine trigger in the brain but still be so fully immersed in the flow of
deep aesthetic engagement that the magic is not lost. Indeed, for us arts and
health geeks, the arts and science are both forms of magic, rooted in the same
two common concepts.
Seventy thousand years ago, at about the midpoint in the brief (so far) life-
span of our species, a cognitive revolution took place. We had already for
many millennia been painting figures and symbols in caves, we had mastered
fire and simple tools, and we had organized into social groupings and bands.
 Foreword xiii

But 70,000 years ago, two things happened that changed the course of our ev-
olution. The first was the “magic what if,” as Stanislavsky called it: the ability
to imagine something that does not exist in nature or has yet to be proven to
exist. This creative leap led to the first imaginative art but also was the founda-
tion of the hypothesis, the beginning of the scientific method.
The other change that happened was the emergence of caring for the in-
jured, unwell, and vulnerable, a trait unique to humans on the scale we have
practiced it since then. The two innovations are not unrelated. For the clan
to put itself at risk by caring for the vulnerable members, it had to imagine
a positive outcome and realize why it was beneficial to the clan to invest the
time, skill, and organization to nurse the unwell back to health. This notion of
defining the group by the care of the vulnerable is the essence of compassion.
The birth of health care was made possible by the creative act we call hope.
In this volume, Dr. Girija Kaimal has put together an impressive collec-
tion of the current state of play of the neurology of the aesthetic experience
and effective practice of arts used for health. For those of you who worry that
learning how and why the arts might be beneficial to our well-​being might
spoil the magic, I say, “Don’t worry. The frog lives!”

Christopher Bailey
Arts and Health Lead, World Health Organization
Geneva, Switzerland, February 2022
Introduction

Premise

The premise of this book is that creative self-​expression is the foundation for
mental health and well-​being just as physical exercise and nutritious food are
essential to the body. My aim is to explain why the human instinct for creative
expression exists, what happens when we cannot express ourselves effectively,
the sublimating role of creativity, how it aids healing, and how it can help us
thrive. My four goals for writing this book are as follows:

1. To dispel the idea that creativity is the domain of a select gifted few.
I highlight how creativity is a defining feature of the human species.
Living with the reality of uncertainty in our human lives, our inherent
creative capacity, which can manifest itself in many ways in our lives, is
the source of our ability to survive and thrive. The desire to express our-
selves is an innate need that serves as a safety valve for health and well-​
being. As humans we seek to share what we know in order to maximize
our survival and enable a sense of belonging of our unique selves in an
accepting community of peers.
2. To democratize the idea of creative self-​expression and share evidence
from neurobiology and neuroscience on how creating, innovating,
and bridging from the intangible of the imagination to the concrete of
objects promote well-​being. Most scholarship about art has tended to
be about viewing art or experiencing it, especially the works of famous
artists. We cannot live out every life scenario, and therefore receptive ar-
tistic expressive experiences such as encountering the stories embedded
in artistic works of paintings, fiction, poetry, drama, and dance help
us learn vicariously about life and all that it can be. Expressive artistic
works enable us to add the stories of our own experiences to this pan-
theon of creative works.
3. To share evidence on how creative self-​expression helps us cope
adaptively when faced with adversity and trauma. Beyond literal self-​
expression, creative self-​expression is especially relevant because it

The Expressive Instinct. Girija Kaimal, Oxford University Press. © Oxford University Press 2023.
DOI: 10.1093/​oso/​9780197646229.003.0001
2 Introduction

gives us an outlet, a perspective, and thus a sense of agency and control.

When faced with challenges that threaten our own capacity to function,
working with someone like an art therapist who can serve a facilitative
role can help us develop a sense of belonging and function adaptively in
the world again.
4. To provide suggestions on how the results of research on creative self-​
expression and well-​being can be integrated into our lives. We have
evolved arts practices over time, and the future promises to bring new
tools for research and self-​expression.

These four ideas make up the structural foundation of this book, with each
idea covered in a dedicated part. In the chapters included in this book I ex-
plore questions like: What is the purpose of art in our lives? How does creative
expression help us learn about life itself through stories embedded in the met-
aphor of the art form such that we learn how to respond to or to know of the
human condition without having lived through a particular experience? Do
we instinctively create, seek, and replicate that which resonates with us? Is art
and beauty essential like food, drink, and social connection? Could the desire
for beauty, to be surrounded by elements of nature, be an innate need? Are art
and creative expression essential for a good life? What can we learn from the
stories embedded in fiction, drama, dance, poetry, music, and visual art?
As with any scholarly and creative effort, this book is defined by my
worldview and expertise. My choices of material to include are necessarily
connected to my interests and expertise. The focus is primarily on the ther-
apeutic and health-​promoting aspects of visual art-​making, which is the lens
through which I wrote this book and the lens that is present as a through-​line
in every chapter. Most of what I share relates to my own developmental and
professional history: my Indian heritage, being a woman, a mother, an artist,
a scholar, and an educator, deeply interested in the landscape of art-​making
in our lives. It is necessarily derived from and built on the intersection of my
understanding of the world and the role of art within it. I integrate my inter-
pretation of the meaning of creative expression in our life by connecting it to
evolutionary theory, human development, and the human capacity to cope
and respond to threats and adversities in our everyday life. Relatedly, I include
anecdotes to exemplify a particular idea as it relates to lived experiences and
personal applications of some of the research and theory.
I invite you on a journey with me. What sort of journey is it, you ask? Is it
a quest? A hero’s/​heroine’s journey? A treasure hunt? A journey of discovery
or a trip to a vacation? What might you expect? Should you prepare for high
drama, conflicts, and battles to be fought, or should you expect a trip where
 Introduction 3

you sit back, relax, and enjoy the ride? Is it a yarn: a story of a journey? All
great questions, and all I can say is that I hope it is a bit of all of the above: that
you encounter a journey that traverses time and space, forwards and back.
Perhaps you might see some of your own story in here and learn about some
others. As with all journeys there are things we might prepare for and expect,
but no matter how well predicted our needs be, we will encounter surprises.
I hope this book and the journey through it fulfills the best purposes of
journeys: to travel, to learn, and perhaps to see the familiar anew.
In terms of logistics and structure, each chapter can be considered a stand-
alone essay, like a site/​town visited on the journey. But each chapter/​essay is
also part of my overall goals, which are to share the motivation and founda-
tional ideas underlying the value of creative self-​expression as an evolutionary
adaptation of the human imagination to help us survive and thrive every day.
I use visual and verbal metaphors especially inspired by nature throughout
this book because they connect to our evolutionary history, biological pro-
cesses in response to external threats (physiological and psychological), as
well as my very personal human journey through places and time.

Guide map for this book

You are here. And this is your map. To guide us on this journey, I have for us
a big-​picture contour map of the terrain (Figure I.1). You will see that this
book is divided into an introduction and four main parts based on the goals
outlined above in the “Premise” section.
As you can see from Figure I.1, the book begins with a foreword and intro-
duction, which includes the premise, guide map, and origins of the ideas and
research included here. Part I presents the first part of the big-​picture con-
tour map of the terrain, focused on the landscape of the field, spanning his-
torical and theoretical perspectives on creative expression. It comprises three
chapters. Chapter 1 presents an overview of the importance of self-​expression,
how it is related to our evolutionary need to imagine the future, and the role
of metaphor as a bridge between self-​expression and artistic expression.
Chapter 2 summarizes a range of theoretical and philosophical perspectives
on creative self-​expression and why we need to democratize the idea of cre-
ativity. Chapter 3 focuses on our collective heritage and roots in indigenous
practices and our connection to nature. This chapter includes research on
being in nature, which serves as a bridge to Part II.
Part II provides the next section of the big-​picture contour map of the
terrain. Building on the conceptual foundations presented in Part I, Part

P art I: T h e ori e s a n d
hi st or y of cr e ati v e
s elf- e x pr e s si o n
C h a pt er 8: Cr e ati v e
s elf- e x pr e s si o n a n d a d v er sit y
C h a pt er 2:
P hil o s o p hi c al
p er s p e cti v e s a n d
t h e ori e s
C h a pt er 1: W h y cr e ati v e
s elf- e x pr e s si o n m att er
F o r e w ord
P art III: Cr e ati v e e x pr e s si o n,
a d v er sit y a n d tr a u m a P art I V: I m pli c ati o n s f or c urr e nt
a n d f ut ur e w or k i n art s h e alt h
a n d w ell- b ei n g
C h a pt er 9: Cr e ati v e C h a pt er 1 0: T h e pr e p ar e d
s el f-e x pr e s si o n a n d w arri or: I nt e g r at e d i n mi n d,
a d v er sit y i n t h e b o d y, a n d s pirit
d e v el o pi n g y e ar s
C h a pt er 3: I n di g e n o u s
a n d tr a diti o n al art s
pr a cti c e s a n d h e alt h
C h a pt er 1 1: N e w
C h a pt er 7: Cr e ati v e
w a y s t o t hi n k a b o u t
s elf- e x pr e s si o n b y
cr e a ti v e
o ur s el v e s v er s u s
s el f-e x pr e s si o n a n d
wit h ot h er s
n e w t o ol s f or r e s e ar c h

Gl o s s ar y

C h a pt er 4: R e c e pti v e
a n d e x pr e s si v e
Pr e mi s e e x p eri e n c e s

C h a pt er 6:
N e ur oi m a gi n g a n d
art- m a ki n g
Ori gi n s
R ef er e n c e s
A er w or d
C h a pt er 5: A c k n o wl e d g m e nt s
N e ur o bi ol o gi c al
i n di c at or s a n d cr e ati v e
I ntr o d u cti o n s elf- e x pr e s si o n

P art II: P h y si ol o gi c al a n d
p s y c h ol o gi c al pr o c e s s e s a n d
o ut c o m e s

Fi g ur e I. 1. T err ai n m a p f or t h e b o o k
 Introduction 5

II focuses on current research and the peer-​reviewed evidence base on the

health outcomes of creative visual self-​expression and art-​making. Chapter 4
provides an overview of receptive and expressive experiences: namely, how
our brain processes sensory input and how viewing/​receptive experiences
differ from making/​expressive experiences. Chapter 5 focuses on the neu-
robiological aspects of self-​expression, including neuroinflammation and
biomarker-​based evidence of outcomes of art-​making. The human body’s
immune system maps well to the warrior metaphor: It responds to external
threats (biological [e.g., viruses] and psychosocial [e.g., stress]) that activate
the body’s defense mechanisms. This metaphor does not represent violence
but rather a form of self-​defense to help one tackle the challenges and stressors
that are an inevitable part of life. Chapter 6 includes evidence on what we
know from brain imaging studies of visual self-​expression and the outcomes
seen in the human brain and body.
Building on the findings of Part II, which mostly involve normative pro-
cesses, in Part III I present the unique strengths of the arts in times of adversity.
Chapter 7 provides an overview of the arts, health, and human development
professions, including art therapy, and how they differ from each other in
serving individuals in need. Chapter 8 includes findings related to creative
expression among children. There is an imperative on us adults to offer tools
to developing children and youth for self-​regulation which in turn is essential
for their well-​being. Chapter 9 focuses on how the arts help us manage and
cope with trauma and adversity across the lifespan, including examples from
the military and medical settings. I share evidence on this topic, including the
unique intersection of arts education and arts for health for this population.
Lastly, in Part IV, all the chapters covered so far are linked to effective
practices and directions for the future. Chapter 10 includes ideas on how to
integrate creative practices into our lives in meaningful ways. Just like diet and
exercise, managing our inner lives is key to leading a healthy and meaningful
life. To be engaged in artistic practices is to face, confront as needed, process,
and manage our emotional lives. Chapter 11 offers ideas on what remains to
be studied and better understood in the realm of arts and health, including the
use of new technology and tools. I conclude with an afterword, a reflection on
the journey and a concluding message to the reader.
My aim in writing this book was to make the research on arts and health
meaningful and relevant to anyone interested in the topic. This includes
scholars and practitioners in arts and health as well as the reader inter-
ested in the interplay of arts, science, and human development topics. Many
metaphors emerged for me throughout the process of writing, including those
of hunting, gathering, discovering, challenging, giving birth, and dying: Like
Another random document with
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 Austria-Hungary, Belgium, Bulgaria, China, Denmark, France,
Germany, Great Britain, Greece, Italy, Japan, Luxembourg,
Mexico, Montenegro, the Netherlands, Persia, Portugal,
Roumania, Russia, Servia, Siam, Spain, Sweden and Norway,
Switzerland, Turkey, and the United States of America,
appointed representatives who met at The Hague, on the 18th of
May, 1899, and organized the Conference by electing M. de
Staal, Russian Ambassador, to preside. The United States was
represented by the Honorable Andrew D. White, Ambassador to
Berlin, the Honorable Seth Low, President of Columbia
University, the Honorable Stanford Newel, Envoy Extraordinary,
&c., to The Hague, Captain Alfred T. Mahan, U. S. N., Captain.
William Crozier, U. S. A., and the Honorable Frederick W.
Holls, of New York. The representatives of Great Britain were
Sir Julian Pauncefote, Ambassador to the United States, Sir
Henry Howard, Envoy Extraordinary, &c., to The Hague,
Vice-Admiral Sir John A. Fisher, Major-General Sir J. C.
Ardagh, and Lieutenant-Colonel C. à Court.

{354}

"The Conference at The Hague was a Parliament of Man

representing, however imperfectly, the whole human race. The
only independent ones not represented at the Huis ten Bosch
were the South American republics, the Emperor of Morocco, the
King of Abyssinia, and the Grand Lama of Tibet. That the South
American republics were not represented is not the fault of
the Russian Emperor. Mexico received and accepted an
invitation. Brazil received, but rejected, the invitation to
be present, and so did one other South American republic. The
original Russian idea was to assemble representatives from
every independent government in the world; nor did they even
confine themselves to the secular governments. They were very
anxious that the Pope should also be directly represented in
this supreme assembly. Even with the Pope and South America
left out, the Congress represented more of the world and its
inhabitants than any similar assembly that has ever been
gathered together for the work of international legislation.
That circumstance in itself is sufficient to give distinction
to the Conference at The Hague, which, it is expected, will be
the forerunner of a series of conferences, each of which will
aim at being more and more universally representative. On the
eve of the twentieth century the human race has begun to
federate itself. That is the supreme significance of the
assembly which has just spent two months in the capital of
Holland."

W. T. Stead,
The Conference at The Hague
(Forum, September, 1899).

To systematize and facilitate the discussions of the

Conference, three Commissions or Committees were appointed,
between which the several subjects suggested in the Russian
circular of January 11 (as given above), and agreed to by the
several governments, were distributed. The 1st, 2d, 3d and 4th
propositions of the programme were referred to the First
Commission, the 5th, 6th and 7th to the Second, the 8th
(concerning mediation and arbitration) to the Third. This was
done on the 23d of May, after which the general Conference was
held only at intervals, to receive and consider reports from
the several Commissions, of agreements reached or
disagreements ascertained. This went on until the 29th of
July, when the several Conventions, Declarations, and
Recommendations agreed upon for submission to the governments
represented were summarized in the following "Final Act,"
signed by all:

"In a series of meetings, between the 18th May and the 29th
July, 1899, in which the constant desire of the Delegates
above mentioned has been to realize, in the fullest manner
possible, the generous views of the august Initiator of the
Conference and the intentions of their Governments, the
Conference has agreed, for submission for signature by the
Plenipotentiaries, on the text of the Conventions and
Declarations enumerated below and annexed to the present Act:

"I. Convention for the pacific settlement of international

conflicts.

"II. Convention regarding the laws and customs of war by land.

"III. Convention for the adaptation to maritime warfare of the

principles of the Geneva Convention of the 22nd August, 1864.

"IV. Three Declarations:

1. To prohibit the launching of projectiles and explosives

from balloons or by other similar new methods,

2. To prohibit the use of projectiles, the only object of

which is the diffusion of asphyxiating or deleterious
gases.

3. To prohibit the use of bullets which expand or flatten

easily in the human body, such as bullets with a hard
envelope, of which the envelope does not entirely cover the
core, or is pierced with incisions.

"These Conventions and Declarations shall form so many

separate Acts. These Acts shall be dated this day, and may be
signed up to the 31st December, 1899, by the Plenipotentiaries
of the Powers represented at the International Peace
Conference at The Hague.

"Guided by the same sentiments, the Conference has adopted

unanimously the following Resolution:—'The Conference is of
opinion that the restriction of military budgets, which are at
present a heavy burden on the world, is extremely desirable
for the increase of the material and moral welfare of
mankind.'
"It has, besides, formulated the following wishes:

"1. The Conference, taking into consideration the preliminary

steps taken by the Swiss Federal Government for the revision
of the Geneva Convention, expresses the wish that steps may be
shortly taken for the assembly of a Special Conference having
for its object the revision of that Convention. This wish was
voted unanimously.

"2. The Conference expresses the wish that the questions of

the rights and duties of neutrals may be inserted in the
programme of a Conference in the near future.

"3. The Conference expresses the wish that the questions with
regard to rifles and naval guns, as considered by it, may be
studied by the Governments with the object of coming to an
agreement respecting the employment of new types and calibres.

"4. The Conference expresses the wish that the Governments,

taking into consideration the proposals made at the
Conference, may examine the possibility of an agreement as to
the limitation of armed forces by land and sea, and of war
budgets.

"5. The Conference expresses the wish that the proposal, which
contemplates the declaration of the inviolability of private
property in naval warfare, may be referred to a subsequent
Conference for consideration.

"6. The Conference expresses the wish that the proposal to

settle the question of the bombardment of ports, towns, and
villages by a naval force may be referred to a subsequent
Conference for consideration.

"The last five wishes were voted unanimously, saving some

abstentions.
 "In faith of which, the Plenipotentiaries have signed the
present Act, and have affixed their seals thereto. Done at The
Hague, 29th July, 1899, in one copy only, which shall be
deposited in the Ministry for Foreign Affairs, and of which
copies, duly certified, shall be delivered to all the Powers
represented at the Conference."

Great Britain, Parliamentary Publications

(Papers by Command: Miscellaneous,
Number 1, 1899, pages 3-4, 8 and 288-9).

{355}

The accompanying Conventions and Declarations were in no case

unanimously signed, several delegations, in each case,
claiming time for the governments they represented to consider
certain questions involved. The most important of the proposed
Conventions, namely, that "For the Pacific Settlement of
International Disputes," was signed at The Hague by the
delegates from Belgium, Denmark, Spain, the United States of
America, Mexico, France, Greece, Montenegro, the Netherlands,
Persia, Portugal, Roumania, Russia, Siam, Sweden and Norway,
and Bulgaria; but not by Austria-Hungary, Germany, Italy,
Japan, Great Britain, Luxembourg, Switzerland, Servia, Turkey,
or China. Ultimately, however, the great Treaty of Arbitration
was signed by everyone of the Powers represented. The
signature of the delegates of the United States was given
under reserve of a declaration which will be found in the
following excerpt from the general report of the American
Commission. The full text of each of the Conventions is given
below.

"The entire plan for the tribunal and its use is voluntary, so
far as sovereign States are concerned. The only seeming
exceptions to this rule are contained in Article 1, which
provides that the Signatory Powers agree to employ their
efforts for securing the pacific regulation of international
differences; and Article 27, which says that the Signatory
Powers consider it to be a duty, in the case where an acute
conflict threatens to break out between two or more of them,
to remind those latter that the permanent court is open to
them. The obligation thus imposed is not legal or diplomatic
in its nature. These articles merely express a general moral
duty for the performance of which each State is accountable
only to itself. In order, however, to make assurance doubly
sure and to leave no doubt whatever of the meaning of the
Convention, as affecting the United States of America, the
Commission made the following declaration in the full session
of the Conference, held July 25:—

The Delegation of the United States of America, in signing the

Convention regulating the peaceful adjustment of international
differences, as proposed by the International Peace
Conference, make the following declaration:—Nothing contained
in this Convention shall be so construed as to require the
United States of America to depart from its traditional policy
of not intruding upon, interfering with, or entangling itself
in the political questions or policy or internal
administration of any foreign State; nor shall anything
contained in the said Convention be construed to imply a
relinquishment by the United States of America of its
traditional attitude toward purely American questions.' Under
the reserve of this declaration the United States delegates
signed the Arbitration Convention itself. Article 8 of the
Convention, providing for a special form of Mediation, was
proposed individually by Mr. Holls of the United States
Commission. … It is hoped that in particular crises, when the
other means provided by the Convention for keeping or
restoring peace have failed, it may prove to have real and
practical value. It is certain that, by the Continental States
of Europe, it has been exceedingly well received."

General Report of the American Commission.

"Objection has been made to [the International Court of
Arbitration] on the ground that submission to it is purely
voluntary and that no executive authority has been provided to
carry out its decrees. The answer to all such objections is
simply that the power of enlightened public opinion is relied
upon to be amply sufficient for the purpose of insuring
obedience to every just mandate of this Court. In the case of
the United States of America the judgments of the Court,
according to the decisions now in force, will have a
peculiarly binding force. An agreement to submit a case to the
Court cannot be made by the United States, except by way of a
treaty, which, when ratified by the Senate, becomes the
supreme law of the land. In the case of La Ninfa, Whitelaw v.
The United States (75 Fed. Rep., 513), it was decided by the
United States Circuit Court of Appeals in California that by
virtue of the treaty the judgment of the Court of Arbitration
provided for by the terms of the treaty has all the force of a
federal statute, and it is itself the supreme law of the land,
binding upon every individual citizen of the United States,
including all federal and State authorities. For us, at least,
the International Court of Arbitration at The Hague will, if
this view prevails, in reality be the highest possible
tribunal, with an authority binding even on our own United
States Supreme Court.

"Article 27 aims, in a measure, to supply the deficiency of

the provision for obligatory arbitration, in that it declares
it to be the duty of all Signatory Powers to remind anyone or
more of themselves, in case of a threatened dispute, that the
permanent Court of Arbitration is open to them. What
particular effect this particular article will have must be
left to the future. Without modification or reservation the
article, when ratified by the United States, would have
constituted a complete abandonment of the time-honored Monroe
Doctrine. Accordingly the representatives of the United States
declined to sign the treaty, except under a reservation or
 declaration, which was solemnly accepted by the Peace
Conference, thus materially modifying the jurisdiction of the
Court [see above]. … By this declaration the Monroe Doctrine
was not only self-guarded, but it was stated and vindicated
more emphatically than ever before in our history, and the
people of this country are, therefore, in a position to
cordially support the International Court of Arbitration,
without the fear that the Court itself, or the fact of its
establishment, may ever be used against this country, or to
the embarrassment of its diplomacy and traditional policy. …

"The effect of the establishment of the Court upon European

diplomacy is necessarily surrounded by great uncertainty. In
a recent review of the work of the Peace Conference I ventured
to use this language: 'It is most encouraging and of the
highest importance that upon the whole Continent the
governments are apparently in advance of public opinion upon
the entire subject of the Peace Conference. The reason is not
far to seek. No man who is fit for the position can to-day
hold a place involving the direction of his country's
international policy without feeling an almost intolerable
pressure of responsibility. To him every remote chance of a
lightening of his burden comes as a promise of blessed relief.
It is a historical fact that none of the obstacles to success
which the Peace Conference had to overcome originated in the
mind of any sovereign or of any high minister of State. In
every case they were raised by underlings without
responsibility and anxious to show superior wisdom by finding
fault. So long as this favorable governmental attitude
continues there is every reason for encouragement.'

{356}

'Continental public opinion, especially in questions of

foreign policy, seems more pliable than ever before, and is as
clay in the hands of a potter, so far as alliances and
sympathies are concerned, when following a popular monarch or
 foreign minister.' I have since been assured by the highest
officials of at least two great European Powers, that this
statement meets with their unqualified approval. The sneers of
irresponsible journals and politicians cannot and will not
affect the deliberate purposes of a high-minded and serious
minister of State."

F. W. Holls,
The International Court of Arbitration at The Hague;
a paper read before the New York State Bar Association,
January 15, 1901.

PEACE CONFERENCE:
Convention for the Pacific Settlement of
International Disputes.

TITLE I.
On the Maintenance of the General Peace.

ARTICLE I.
With a view to obviating as far as possible, recourse to
force in the relations between States, the Signatory Powers
agree to use their best efforts to insure the pacific
settlement of international differences.

TITLE II.
On Good Offices and Mediation.

ARTICLE II.
In case of serious disagreement or conflict, before an
appeal to arms, the Signatory Powers agree to have
recourse, as far as circumstances allow, to the good
offices or mediation of one or more friendly Powers.

ARTICLE III.
Independently of this recourse, the Signatory Powers
recommend that one or more Powers, strangers to the
dispute, should, on their own initiative, and as far as
circumstances may allow, offer their good offices or
mediation to the States at variance. Powers, strangers to
the dispute, have the right to offer good offices or
mediation, even during the course of hostilities. The
exercise of this right can never be regarded by one or the
other of the parties in conflict as an unfriendly act.

ARTICLE IV.
The part of the mediator consists in reconciling the
opposing claims and appeasing the feelings of resentment
which may have arisen between the States at variance.

ARTICLE V.
The functions of the mediator are at an end when once it is
declared, either by one of the parties to the dispute, or
by the mediator himself, that the means of reconciliation
proposed by him are not accepted.

ARTICLE VI.
Good offices and mediation, either at the request of the
parties at variance, or on the initiative of Powers
strangers to the dispute, have exclusively the character of
advice and never have binding force.

ARTICLE VII.
The acceptance of mediation can not, unless there be an
agreement to the contrary, have the effect of interrupting,
delaying, or hindering mobilization or other measures of
preparation for war. If mediation occurs after the
commencement of hostilities it causes no interruption to
the military operations in progress, unless there be an
agreement to the contrary.

ARTICLE VIII.
The Signatory Powers are agreed in recommending the
application, when circumstances allow, for special
 mediation in the following form:—In case of a serious
difference endangering the peace, the States at variance
choose respectively a Power, to whom they intrust the
mission of entering into direct communication with the
Power chosen on the other side, with the object of
preventing the rupture of pacific relations. For the period
of this mandate, the term of which, unless otherwise
stipulated, cannot exceed thirty days, the States in
conflict cease from all direct communication on the subject
of the dispute, which is regarded as referred exclusively
to the mediating Powers, who must use their best efforts to
settle it. In case of a definite rupture of pacific
relations, these Powers are charged with the joint task of
taking advantage of any opportunity to restore peace.

TITLE III.
On International Commissions of Inquiry.

ARTICLE IX.
In differences of an international nature involving neither
honour nor vital interests, and arising from a difference
of opinion on points of fact, the Signatory Powers
recommend 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.

ARTICLE X.
The International Commissions of Inquiry are constituted by
special agreement between the parties in conflict. The
Convention for an inquiry defines the facts to be examined and
the extent of the Commissioners' powers. It settles the
procedure. On the inquiry both sides must be heard. The form
and the periods to be observed, if not stated in the inquiry
Convention, are decided by the Commission itself.
 ARTICLE XI.
The International Commissions of Inquiry are formed, unless
otherwise stipulated, in the manner fixed by Article XXXII
of the present Convention.

ARTICLE XII.
The powers in dispute engage to supply the International
Commission of Inquiry, as fully as they may think possible,
with all means and facilities necessary to enable it to be
completely acquainted with and to accurately understand the
facts in question.

ARTICLE XIII.
The International Commission of Inquiry communicates its
Report to the conflicting Powers, signed by all the members
of the Commission.

ARTICLE XIV.
The Report of the International Commission of Inquiry is
limited to a statement of facts, and has in no way the
character of an Arbitral Award. It leaves the conflicting
Powers entire freedom as to the effect to be given to this
statement.

TITLE IV.
On International Arbitration.

CHAPTER I.
On the System of Arbitration.

ARTICLE XV.
International arbitration has for its object the settlement
of differences between States by judges of their own
choice, and on the basis of respect for law.

ARTICLE XVI.
 In questions of a legal nature, and especially in the
interpretation or application of International Conventions,
arbitration is recognized by the Signatory Powers as the
most effective, and at the same time the most equitable,
means of settling disputes which diplomacy has failed to
settle.

ARTICLE XVII.
The Arbitration Convention is concluded for questions
already existing or for questions which may arise
eventually. It may embrace any dispute or only disputes of
a certain category.

{357}

ARTICLE XVIII.
The Arbitration Convention implies the engagement to submit
loyally to the Award.

ARTICLE XIX.
Independently of general or private Treaties expressly
stipulating recourse to arbitration as obligatory on the
Signatory Powers, these Powers reserve to themselves the
right of concluding, either before the ratification of the
present Act or later, new Agreements, general or private,
with a view to extending obligatory arbitration to all
cases which they may consider it possible to submit to it.

CHAPTER II.
On the Permanent Court of Arbitration.

ARTICLE XX.
With the object of facilitating an immediate recourse to
arbitration for international differences, which it has not
been possible to settle by diplomacy, the Signatory Powers
undertake to organize a permanent Court of Arbitration,
accessible at all times and operating, unless otherwise
stipulated by the parties, in accordance with the Rules of
Procedure inserted in the present Convention.

ARTICLE XXI.
The Permanent Court shall be competent for all arbitration
cases, unless the parties agree to institute a special
Tribunal.

ARTICLE XXII.
An International Bureau, established at The Hague, serves
as record office for the Court. This Bureau is the channel
for communications relative to the meetings of the Court.
It has the custody of the archives and conducts all the
administrative business. The Signatory Powers undertake to
communicate to the International Bureau at The Hague a duly
certified copy of any conditions of arbitration arrived at
between them, and of any award concerning them delivered by
special Tribunals. They undertake also to communicate to
the Bureau the Laws, Regulations, and documents eventually
showing the execution of the awards given by the Court.

ARTICLE XXIII.
Within the three months following its ratification of the
present Act, each Signatory Power shall select four persons
at the most, of known competency in questions of
international law, of the highest moral reputation, and
disposed to accept the duties of Arbitrators. The persons
thus selected shall be inscribed, as members of the Court,
in a list which shall be notified by the Bureau to all the
Signatory Powers. Any alteration in the list of Arbitrators
is brought by the Bureau to the knowledge of the Signatory
Powers. Two or more Powers may agree on the selection in
common of one or more Members. The same person can be
selected by different Powers. The Members of the Court are
appointed for a term of six years. Their appointments can
be renewed. In case of the death or retirement of a member
of the Court, his place shall be filled in accordance with
the method of his appointment.

ARTICLE XXIV.
When the Signatory Powers desire to have recourse to the
Permanent Court for the settlement of a difference that has
arisen between them, the Arbitrators called upon to form the
competent Tribunal to decide this difference, must be
chosen from the general list of members of the Court.
Failing the direct agreement of the parties on the
composition of the Arbitration Tribunal, the following
course shall be pursued:—Each party appoints two
Arbitrators, and these together choose an Umpire. If the
votes are equal, the choice of the Umpire is intrusted to a
third Power, selected by the parties by common accord. If
an agreement is not arrived at on this subject, each party
selects a different Power, and the choice of the Umpire is
made in concert by the Powers thus selected. The Tribunal
being thus composed, the parties notify to the Bureau their
determination to have recourse to the Court and the names
of the Arbitrators. The Tribunal of Arbitration assembles
on the date fixed by the parties. The Members of the Court,
in the discharge of their duties and out of their own
country, enjoy diplomatic privileges and immunities.

ARTICLE XXV.
The Tribunal of Arbitration has its ordinary seat at The
Hague. Except in cases of necessity, the place of session
can only be altered by the Tribunal with the assent of the
parties.

ARTICLE XXVI.
The International Bureau at The Hague is authorized to
place its premises and its staff at the disposal of the
Signatory Powers for the operations of any special Board of
Arbitration. The jurisdiction of the Permanent Court, may,
within the conditions laid down in the Regulations, be
extended to disputes between non-Signatory Powers, or
between Signatory Powers and non-Signatory Powers, if the
parties are agreed on recourse to this Tribunal.

ARTICLE XXVII.
The Signatory Powers consider it their duty, if a serious
dispute threatens to break out between two or more of them,
to remind these latter that the Permanent Court is open to
them. Consequently, they declare that the fact of reminding
the conflicting parties of the provisions of the present
Convention, and the advice given to them, in the highest
interests of peace, to have recourse to the Permanent
Court, can only be regarded as friendly actions.

ARTICLE XXVIII.
A Permanent Administrative Council, composed of the
Diplomatic Representatives of the Signatory Powers
accredited to The Hague and of the Netherland Minister for
Foreign Affairs, who will act as President, shall be
instituted in this town as soon as possible after the
ratification of the present Act by at least nine Powers.
This Council will be charged with the establishment and
organization of the International Bureau, which will be
under its direction and control. It will notify to the
Powers the constitution of the Court and will provide for
its installation. It will settle its Rules of Procedure and
all other necessary Regulations. It will decide all
questions of administration which may arise with regard to
the operations of the Court. It will have entire control
over the appointment, suspension or dismissal of the
officials and employés of the Bureau. It will fix the
payments and salaries, and control the general expenditure.
At meetings duly summoned the presence of five members is
sufficient to render valid the discussions of the Council.
The decisions are taken by a majority of votes. The Council
communicates to the Signatory Powers without delay the
Regulations adopted by it. It furnishes them with an annual
Report on the labours of the Court, the working of the
 administration, and the expenses.

ARTICLE XXIX.
The expenses of the Bureau shall be borne by the Signatory
Powers in the proportion fixed for the International Bureau
of the Universal Postal Union.

{358}

CHAPTER III.
On Arbitral Procedure.

ARTICLE XXX.
With a view to encourage the development of arbitration,
the Signatory Powers have agreed on the following Rules
which shall be applicable to arbitral procedure, unless
other Rules have been agreed on by the parties.

ARTICLE XXXI.
The Powers who have recourse to arbitration sign a special
Act ("Compromis"), in which the subject of the difference
is clearly defined, as well as the extent of the
Arbitrators' powers. This Act implies the undertaking of
the parties to submit loyally to the award.

ARTICLE XXXII.
The duties of Arbitrator may be conferred on one Arbitrator
alone or on several Arbitrators selected by the parties as
they please, or chosen by them from the members of the
Permanent Court of Arbitration established by the present
Act. Failing the constitution of the Tribunal by direct
agreement between the parties, the following course shall
be pursued: Each party appoints two Arbitrators, and these
latter together choose an Umpire. In case of equal voting,
the choice of the Umpire is intrusted to a third Power,
selected by the parties by common accord. If no agreement
is arrived at on this subject, each party selects a
different Power, and the choice of the Umpire is made in
concert by the Powers thus selected.

ARTICLE XXXIII.
When a Sovereign or the Chief of a State is chosen as
Arbitrator, the arbitral procedure is settled by him.

ARTICLE XXXIV.
The Umpire is by right President of the Tribunal. When the
Tribunal does not include an Umpire, it appoints its own
President.

ARTICLE XXXV.
In case of the death, retirement, or disability from any
cause of one of the Arbitrators, his place shall be filled
in accordance with the method of his appointment.

ARTICLE XXXVI.
The Tribunal's place of session is selected by the parties.
Failing this selection the Tribunal sits at The Hague. The
place thus fixed cannot, except in case of necessity, be
changed by the Tribunal without the assent of the parties.

ARTICLE XXXVII.
The parties have the right to appoint delegates or special
agents to attend the Tribunal, for the purpose of serving
as intermediaries between them and the Tribunal. They are
further authorized to retain, for the defense of their
rights and interests before the Tribunal, counselor
advocates appointed by them for this purpose.

ARTICLE XXXVIII.
The Tribunal decides on the choice of languages to be used
by itself, and to be authorized for use before it.

ARTICLE XXXIX.
As a general rule the arbitral procedure comprises two
distinct phases; preliminary examination and discussion.
Preliminary examination consists in the communication by
the respective agents to the members of the Tribunal and to
the opposite party of all printed or written Acts and of
all documents containing the arguments invoked in the case.
This communication shall be made in the form and within the
periods fixed by the Tribunal in accordance with Article
XLIX. Discussion consists in the oral development before
the Tribunal of the arguments of the parties.

ARTICLE XL.
Every document produced by one party must be communicated
to the other party.

ARTICLE XLI.
The discussions are under the direction of the President.
They are only public if it be so decided by the Tribunal,
with the assent of the parties. They are recorded in the
"procès-verbaux" drawn up by the Secretaries appointed by
the President. These "procès-verbaux" lone have an
authentic character.

ARTICLE XLII.
When the preliminary examination is concluded, the Tribunal
has the light to refuse discussion of all fresh Acts or
documents which one party may desire to submit to it
without the consent of the other party.

ARTICLE XLIII.
The Tribunal is free to take into consideration fresh Acts
or documents to which its attention may be drawn by the
agents or counsel of the parties. In this case, the
Tribunal has the right to require the production of these
Acts or documents, but is obliged to make them known to the
opposite party.

ARTICLE XLIV.
The Tribunal can, besides, require from the agents of the
parties the production of all Acts, and can demand all
necessary explanations. In case of refusal, the Tribunal
takes note of it.

ARTICLE XLV.
The agents and counsel of the parties are authorized to
present orally to the Tribunal all the arguments they may
think expedient in defence of their case.

ARTICLE XLVI.
They have the right to raise objections and points. The
decisions of the Tribunal on those points are final, and
cannot form the subject of any subsequent discussion.

ARTICLE XLVII.
The members of the Tribunal have the right to put questions
to the agents and counsel of the parties, and to demand
explanations from them on doubtful points. Neither the
questions put nor the remarks made by members of the
Tribunal during the discussions can be regarded as an
expression of opinion by the Tribunal in general, or by its
members in particular.

ARTICLE XLVIII.
The Tribunal is authorized to declare its competence in
interpreting the "Compromis" as well as the other Treaties
which may be invoked in the case, and in applying the
principles of international law.

ARTICLE XLIX.
The Tribunal has the right to issue Rules of Procedure for
the conduct of the case, to decide the forms and periods
within which each party must conclude its arguments, and to
arrange all the formalities required for dealing with the
evidence.