Carnegie Endowment for International Peace
DIVISION OF INTERNATIONAL LAW
THE
HAGUE COURT REPORTS
COMPRISING THE AWARDS. ACCOMPANIED BY SYLLABI, THE AGREEMENTS FOR ARBITRATION, AND OTHER DOCUMENTS IN EACH CASE SUBMITTED TO THE PER- MANENT COURT OF ARBITRATION AND TO COMMISSIONS OF INQUIRY UNDER THE PROVISIONS OF THE CONVEN- TIONS OF 1899 AND 1907 FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
EDITED WITH AN INTRODUCTION
BY
JAMES BROWN SCOTT
DIRECTOR
NEW YORK
OXFORD UNIVERSITY PRESS
AMERICAN BRANCH : 35 WEST S&XD STREET
London, Toronto, Melbourne and Bombay
HUMPHREY MILFORD
1916
COPYRIGHT 1916
CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE. WASHINGTON. D. C.
PREFACE
This publication, as indicated on the title-page, comprises "awards, accompanied by syllabi, the agreements for arbitration, and other docu- ments in each case submitted to the Permanent Court of Arbitration and to Commissions of Inquiry under the provisions of the Conven- tions of 1899 and 1907 for the pacific settlement of international dis- putes." It was the purpose in preparing and publishing this volume to meet the numerous requests received by the Division of International Law of the Endowment for accurate information respecting the vari- ous cases which have come before tribunals of the Permanent Court or before commissions of inquiry under the provisions of the above- named Conventions.
In pursuance of this purpose, a syllabus was prepared on each case giving in as brief form as possible the essential facts and holdings of the tribunal or commission of inquiry. The awards or findings, together with the agreements for arbitration or inquiry and other essen- tial documents, have been obtained in translated form from the most reliable sources available, appropriate references to which appear in footnotes to the respective documents. Where translations have been obtained from official sources, they have been reproduced in their official form, except that a few obvious misprints and an occasional mistranslation have been corrected. Where translations have been obtained from unofficial sources, they have been edited to such a degree as seemed necessary, but they are essentially reproductions of the original translations. In some cases, however, where there were no official or other sources from which to obtain them, the translations were made by the Endowment. It will be observed that in some in- stances translations of quotations are not verbally identical with the translations of the original passages quoted. This is due to the fact that different persons made the translations. Since the sense is unaf- fected by these variations, it was not deemed advisable to harmonize the wording in such cases.
There are also maps and charts accompanying certain of the cases, namely: Grisbadarna Case, North Atlantic Coast Fisheries Case, Island of Timor Case, and Tavignano, Camouna and Gaulois Cases. These maps and charts are reproductions of the originals accompanying the official reports of the different cases, and therefore necessarily have
11 PREFACE
the legend and the names of the countries, places, rivers, etc., in the language used on the original maps or charts.
In view of the fact that the accuracy of the translations might be questioned, especially with respect to the more important documents, an Appendix has been added which contains the original official texts of the translated documents. While this adds very materially to the size of the volume, yet the Director felt that this disadvantage was more than counterbalanced by the usefulness of such a collection of original texts.
The original texts and translations of the Hague Conventions of 1899 and 1907 for the pacific settlement of international disputes have been printed as an annex to the Introduction, in order that the reader may be informed of the method of procedure under which the various arbitral tribunals and commissions of inquiry were instituted and regulated.
While considerable difficulty has been met with in securing certain original texts and authoritative translations, it is believed that the volume as now issued will be found of much service, not only to the casual reader, but to any one desiring to study the various cases from documents of unquestioned accuracy and authority, and that nothing has been omitted which is essential to that purpose.
JAMES BROWN SCOTT, Director of the Division of International Law.
WASHINGTON, D. C. February 28, 1916.
CONTENTS
PAGE
PREFACE i
INTRODUCTION ix
The Hague Conventions of 1899 and 1907 for the pacific settlement of
international disputes xxxii
LIST OF AUTHORITIES cix
ARBITRATIONS BEFORE THE HAGUE TRIBUNALS The Pious Fund Case (Mexico vs. United States)
Syllabus 1
Award of the Tribunal, October 14, 1902 3
Agreement for Arbitration, May 22, 1902 7
Additional Documents
Claims Convention of July 4, 1868 12
Opinion of Mr. Wadsworth, in the original Pious Fund Case before
the United States and Mexican Claims Commission of 1868 17
Opinion of Mr. Zamacona, in the original Pious Fund Case before
the United States and Mexican Claims Commission of 1868 22
Award of Sir Edward Thornton, umpire in the original Pious Fund Case before the United States and Mexican Claims Commission
of 1868, November 11, 1875 48
Decision of Sir Edward Thornton, Amending the Award in the original Pious Fund Case before the United States and Mexican
Claims Commission of 1868 53
The Venezuelan Preferential Case (Germany, Great Britain and Italy vs. Venezuela et al.)
Syllabus 55
Award of the Tribunal, February 22, 1904 56
Agreement for Arbitration, May 7, 1903 62
Additional Documents
Claims Protocol of February 13, 1903, between Germany and
Venezuela 65
Claims Protocol of February 13, 1903, between Great Britain and
Venezuela 67
Claims Protocol of February 13, 1903, between Italy and Venezuela 70 Claims Protocol of February 17, 1903, between the United States
and Venezuela 74
The Japanese House Tax Case (France, Germany and Great Britain vs. Japan)
Syllabus 77
Award of the Tribunal, May 22, 1905 78
Agreement for Arbitration, August 28, 1902 85
Additional Documents
Extract from Treaty of Commerce and Navigation of July 16, 1894,
between Great Britain and Japan 89
Extract from Treaty of Commerce and Navigation of April 4, 1896,
between Germany and Japan 91
Extract from Treaty of Commerce and Navigation of August 4,
1896, between France and Japan 92
The Muscat Dhows Case (France vs. Great Britain)
Syllabus £3
Award of the Tribunal, August 8, 1905 95
Agreement for Arbitration, October 13, 1904 101
IV CONTENTS
Additional Documents
Extract from Treaty of Friendship and Commerce of November 17,
1844, between France and the Iman of Muscat 103
Declaration of March 10, 1862, between France and Great Britain respecting the Independence of the Sultans of Muscat and Zan- zibar 103
Extract from the General Act of Brussels of July 2, 1890, for the
Suppression of the African Slave Trade 104
Supplementary Agreement of January 13, 1905, to the Agreement
for Arbitration 108
Supplementary Agreement of May 19, 1905, to the Agreement for
Arbitration 109
The Casablanca Case (France vs. Germany)
Syllabus 110
Award of the Tribunal, May 22, 1909 Ill
Agreement for Arbitration, November 24, 1908 117
Additional Documents
Protocol of November 10, 1908, containing a Formula of Regrets.. 119
Proems-verbal of Regrets of May 29, 1909 120
The Grisbadarna Case (Norway vs. Sweden)
Syllabus 121
Award of the Tribunal, October 23, 1909 122
Agreement for Arbitration, March 14, 1908 133
Additional Documents
Resolution of His Royal Highness the Crown Prince Regent of Sweden and Norway of March 26, 1904, with accompanying Protocol of March 15, 1904, concerning the Maritime Boundary 136 Annex : Charts opposite 140
The North Atlantic Coast Fisheries Case (Great Britain vs. United States)
Syllabus 141
Award of the Tribunal, September 7, 1910 146
Agreement for Arbitration, January 27, 1909 147
Maps opposite 194
Dissenting Opinion of Luis M. Drago on Question 5 195
Additional Documents
Modus Vivendi of October 6/8, 1906 208
Memorandum of the American Embassy of September 12, 1906 209
Memorandum of the British Foreign Office of September 25, 1906. . 210
Modus Vivendi of September 4/6, 1907 212
Modus Vivendi of July 15/23, 1908 214
Correspondence of January 27-March 4, 1909, supplementary to the
Agreement for Arbitration 215
Resolution of the United States Senate of February 18, 1909 219
Modus Vivendi of July 22/September 8, 1909 220
Agreement of July 20, 1912, adopting Recommendations in the
Award 221
The Orinoco Steamship Company Case (United States vs. Venezuela)
Syllabus 226
Award of the Tribunal, October 25, 1910 228
Agreement for Arbitration, February 13, 1909 235
Additional Documents
Opinion of Mr. Bainbridge, in the original Orinoco Steamship Com- pany Case before the United States and Venezuelan Claims
Commission of 1903 240
Opinion of Mr. Grisanti, in the original Orinoco Steamship Company Case before the United States and Venezuelan Claims Commis- sion of 1903 243
CONTENTS V
PAGE
Award of Charles Augustinus Henri Barge, umpire in the original Orinoco Steamship Company Case before the United States and Venezuelan Claims Commission of 1903, February 22, 1904 255
The Savarkar Case (France vs. Great Britain)
Syllabus 275
Award of the Tribunal, February 24, 1911 276
Agreement for Arbitration, October 25, 1910 280
Additional Document: Notes of October 25, 1910, supplementary to
the Agreement for Arbitration 282
The Canevaro Case (Italy vs. Peru)
Syllabus 284
Award of the Tribunal, May 3, 1912 285
Agreement for Arbitration, April 25, 1910 294
Additional Documents : Notes of April 27, 1910, concerning the For- mation of the Tribunal 296
The Russian Indemnity Case (Russia vs. Turkey)
Syllabus 297
Award of the Tribunal, November 11, 1912 298
Agreement for Arbitration, July 22/August 4, 1910 324
The Carthage Case (France vs. Italy)
Syllabus 329
Award of the Tribunal, May 6, 1913 330
Agreement for Arbitration, March 6, 1912 336
Additional Documents
Joint Note of January 26, 1912, concerning the settlement of the
Carthage and Manouba Cases 339
Supplementary Agreement of April 4, 1912, to the Agreements for
Arbitration in the Carthage and Manouba Cases 340
The Manouba Case (France vs. Italy)
Syllabus 341
Award of the Tribunal, May 6, 1913 342
Agreement for Arbitration, March 6, 1912 351
The Island of Timor Case (Netherlands vs. Portugal)
Syllabus 354
Award of the Tribunal, June 25, 1914 355
Annex : Maps opposite 386
Agreement for Arbitration, April 3, 1913 387
Additional Documents
Agreement of April 20, 1859, relative to Boundary Possessions .... 390 Convention of Commerce, Navigation, Boundaries, etc., of June
10, 1893 393
Declaration of July 1, 1893. regarding Cession of Territory 395
Convention of October 1, 1904, settling the Boundary of the Island
of Timor 396
REPORTS OF THE HAGUE COMMISSIONS OF INQUIRY
The North Sea or Dogger Bank Case (Great Britain vs. Russia)
Syllabus 403
Report of the Commission. February 26, 1905 404
Agreement for Inquiry, November 12/25, 1904 410
Additional Document: Supplementary Protocol of November 12/25,
1904, to the Agreement for Inquiry 412
The Tavignono, Camouna and Gaulois Cases (France vs. Italy)
Syllabus 413
Report of the Commission, July 23, 1912 413
Annex : Maps opposite 416
Agreement for Inquiry, May 20, 1912 417
VI CONTENTS
PAGE
Additional Documents Agreement of April 15, 1912, relative to the Submission of the Cases
to Inquiry and Arbitration 419
Compromis of Arbitration, November 8, 1912 419
Agreement of May 2, 1913, Settling the Controversy 421
TABULAR STATEMENT OF AWARDS AND REPORTS 423
APPENDIX
The Pious Fund Case
Award of the Tribunal, October 14, 1902 (French text) 429
Agreement for Arbitration, May 22, 1902 (Spanish text) 432
Convention of July 4, 1868, between the United States of America and the Republic of Mexico for the Adjustment of Claims (Spanish text) 437
The Venezuelan Preferential Case
Award of the Tribunal, February 22, 1904 (French text) 441
Agreement for Arbitration, May 7, 1903 (German text) 445
Protocol of February 13, 1903, between Germany and Venezuela for
the Adjustment of Claims (German text) 447
Protocol of February 17, 1903, between the United States of America
and Venezuela for the Adjustment of Claims (Spanish text) 449
The Japanese House Tax Case
Award of the Tribunal, May 22, 1905 (French text) 452
Agreement for Arbitration between Germany and Japan, August 28,
1902 (German text) 457
Agreement for Arbitration between France and Japan, August 28,
1902 (French text) 461
Extract from the Treaty of Commerce and Navigation of April 4,
1896, between Germany and Japan (German text) 464
Extract from the Treaty of Commerce and Navigation of August 4,
1896, between France and Japan (French text) 465
The Muscat Dhows Case
Award of the Tribunal, August 8, 1905 (French text) 467
Agreement for Arbitration, October 13, 1904 (French text) 471
Extract from the Treaty of Friendship and Commerce of November
17, 1844, between France and the Iman of Muscat (French text) 473
Declaration of March 10, 1862, between France and Great Britain re- specting the Independence of the Sultans of Muscat and Zanzibar (French text) 473
Extract from the General Act of Brussels of July 2, 1890, for the
Suppression of the African Slave Trade (French text) 474
Supplementary Agreement of January 13, 1905, to the Agreement for
Arbitration (French text) 477
Supplementary Agreement of May 19, 1905, to the Agreement for
Arbitration (French text) 477
The Casablanca Case
Award of the Tribunal, May 22, 1909 (French text) 479
Agreement for Arbitration, November 24, 1908 (French text) 484
Protocol of November 10, 1908, containing a Formula of Regrets
(French text) 485
Proems-verbal of Regrets of May 29, 1909 (French text) 485
The Grisbadarna Case
Award of the Tribunal, October 23, 1909 (French text) 487
Agreement for Arbitration, March 14, 1908 (Swedish and Norwe- gian texts) 496
CONTENTS Vll
PAGE
Royal Resolution of March 26, 1904, with accompanying Protocol of March 15, 1904, concerning the Maritime Boundary between Norway and Sweden (Swedish text) 500
The Orinoco Steamship Company Case
Award of the Tribunal, October 25, 1910 (French text) 504
Agreement for Arbitration, February 13, 1909 (Spanish text) 508
The Savarkar Case
Award of the Tribunal, February 24, 1911 (French text) 516
Agreement for Arbitration, October 25, 1910 (French text) 519
Supplementary Note of October 25, 1910, to the Agreement for
Arbitration (French text) 520
The Canevaro Case
Award of the Tribunal, May 3, 1912 (French text) 522
Agreement for Arbitration, April 25, 1910 (Italian and Spanish texts) 528 Notes of April 27, 1910, concerning the Formation of the Tribunal
(Spanish text) 530
The Russian Indemnity Case
Award of the Tribunal, November 11, 1912 (French text) 532
Agreement for Arbitration, July 22/ August 4, 1910 (French text) 551
The Carthage Case
Award of the Tribunal, May 6, 1913 (French text) 556
Agreement for Arbitration, March 6, 1912 (French text) 561
Joint Note of January 26, 1912, concerning the Settlement of the
Carthage and Manouba Cases (French text) 562
Agreement of April 4, 1912, supplementary to the Agreements for
Arbitration in the Carthage and Manouba Cases (French text) . . 563
The Manouba Case
Award of the Tribunal, May 6, 1913 (French text) 565
Agreement for Arbitration, March 6, 1912 (French text) 571
The Island of Timor Case
Award of the Tribunal, June 25, 1914 (French text) 574
Agreement for Arbitration, April 3, 1913 (French text) 596
Agreement of April 20, 1859, between the Netherlands and Portugal
relative to Boundary Possessions (French text) 599
Convention of June 10, 1893, between the Netherlands and Portugal
relative to Commerce, Navigation, Boundaries, etc. (French text) 601 Declaration of July 1, 1893, regarding Cession of Territory (French
text) 603
Convention of October 1, 1904, settling the Boundary of the Island
of Timor (French text) 604
The North Sea or Dogger Bank Case Report of the Commission of Inquiry, February 26, 1905 (French
text) 609
Agreement for Inquiry, November 12/25, 1904 (French text) 614
Supplementary Protocol of November 12/25, 1904, to the Agreement
for Inquiry (French text) 615
The Tavignano, Camouna and Gaulois Cases
Report of the Commission of Inquiry, July 23, 1912 (French text).. 616
Agreement for Inquiry, May 20, 1912 (French and Italian texts) 617
Agreement of April 15, 1912. relative to the Arbitration of the
Tavignana, Camouna and Gaulois Cases (French text) 621
Compromis of Arbitration, November 8, 1912 (French text) 621
Agreement of May 2. 1913, Settling Definitively the Tavignana,
Camouna and Gaulois Controversy (French text) 623
INDEX 625
INTRODUCTION
Arbitration, the gift of the Grecian world, was frequently resorted to in the Middle Ages, but was passing out of the minds of men and the practice of nations in the eighteenth century, when it was brought again to honor by the Republic of the New World. The statesman to whom the renascence of arbitration is due was John Jay, who was Sec- retary of State for Foreign Affairs during the Confederation from 1784 to the institution of the Government under the Constitution, and who continued to act as Secretary of State in Washington's administration until Jefferson's assumption of the office on March 22, 1790, upon his return from France, in which country he had represented the United States as its Minister. It is important to bear this in mind, because it was John Jay who, as Secretary of State under the Confederation pro- posed the arbitration of the outstanding difficulties with Great Britain and sent a report to Congress advocating this form of settlement. The report was sent to Congress on April 21, 1785, recommending that "effectual measures should be immediately taken to settle all disputes with the Crown of Great Britain" with respect to the northeastern boundary of the United States, and Secretary Jay suggested that the papers in the case "should be transmitted to the Minister Plenipoten- tiary of the United States at that Court, with instructions to make a proper representation of the case, and to propose that commissioners be appointed to hear and finally decide those disputes."1
It was likewise John Jay, as Acting Secretary of State in Washing- ton's Cabinet, who urged President Washington to secure by arbitra- tion the settlement of the outstanding difficulties which unfortunately had not been settled as Jay had proposed. Washington, acting upon Jay's suggestion, sent a copy of Jay's original report to the first Con- gress under the Constitution, stating in his letter of transmission, dated February 9, 1790, that "it is desirable that all questions between this and other nations be speedily and amicably settled."2
Congress took no action, and the disputes between Great Britain and the United States remained unsettled, a constant source of irrita- tion and a pretext for war if either country should be disposed to re- sort to force. The outbreak of the French Revolution and the war
^American State Papers, vol. i, p. 94. *Ibid., p. 90.
X INTRODUCTION
between Great Britain and France in 1793 further embittered the relations of Great Britain and the United States, because France claimed and exercised the right, over the protest alike of Great Britain and the United States, to fit out and to arm privateers within the juris- diction of the United States ; to cruise upon British commerce, taking the prizes when captured either within or without our territorial waters into American ports, and to condemn them in prize courts organized within our jurisdiction. The actions of Great Britain were not wholly beyond criticism, and the two nations found themselves slowly drift- ing into war, when Washington proposed to Great Britain to negotiate directly in order to settle all of their outstanding difficulties, and se- lected John Jay, then Chief Justice of the Supreme Court of the United States, to repair to England as the representative of the United States in such negotiations.
It was in a way poetic justice that Jay, who had originally pro- posed, in the days of the Confederation, to settle the outstanding dis- putes with Great Britain by arbitration, and who had influenced Wash- ington to espouse that method of settling controversies with the mother country, should have been chosen to carry into effect his own recom- mendations. Some of the outstanding difficulties he was able to settle by direct negotiation; others, particularly the claims which he had previously proposed to arbitrate and the difficulties which had arisen since the outbreak of the wars of the French Revolution, he was unable to settle by direct negotiation, but he succeeded in prevailing upon Great Britain to submit these disputes to arbitration. He pre- served the peace of his country, and by the treaty which bears his name, he introduced to the favorable notice of the modern world arbitration for the settlement of disputes which diplomacy had failed to adjust. But in so doing, he sacrificed every hope he might have cherished for political preferment, for his treaty, which was very unpopular with the partisans of a stiff foreign policy, was advised and consented to by a narrow margin in the Senate ; the appropriations for carrying it into effect were passed in the House by yeas 51, nays 48,1 and Jay himself shared the unpopularity of his treaty. He had had, however, no illusion as to the outcome of his mission, saying, "If Washington shall think fit to call me to perform this service, I will go and perform it to the best of my abilities, foreseeing as I do the consequences to my personal popularity. The good of my country I believe demands the sacrifice, and I am ready to make it." To
^Annals of Congress, vol. 5. 4th Cong.. 1st sess., p. 1291.
INTRODUCTION XI
Mrs. Jay he confided his views without reserve. "This is not of my seeking," he said in a letter to her; "on the contrary I regard it as a measure not to be desired, but to be submitted to." And in another letter, a little later, after Jay had been appointed special envoy to Great Britain he wrote : "No appointment ever operated more unpleas- antly upon me; but the public considerations which were urged, and the manner in which it was pressed, strongly impressed me with a con- viction that to refuse it would be to desert my duty for the sake of my ease and domestic concerns and comforts."1
Jay's treaty provided in its 5th, 6th and 7th articles for the arbitration of the boundary disputes between the two countries; the settlement of disputes concerning debts claimed by British merchants, to be due and unpaid, but which could not be collected because of legal impediments interposed by the States of the Union; and, finally, the complaints of citizens of the United States, on the one hand, and of British subjects, on the other, for losses since the outbreak of the war between Great Britain and France, due to the alleged illegal conduct of Great Britain and the United States. The success of the commis- sion organized under the 7th article to settle this last category of claims, and the admirable opinions of the commission showing that model judgments could be rendered between nations, as well as within nations, convinced the world that arbitration could safely be resorted to. The result was that during the nineteenth century arbitration be- came the favorite method of settling disputes between nations after the breakdown of diplomacy, and the submission by Great Britain and the United States of the so-called Alabama claims to the arbitration of the Geneva tribunal in 1872, showed the nations that arbitration had no limits which good-will and mutual desire might not overcome. It thus happened that in the course of the nineteenth century the nations generally had had sufficient experience in arbitration to suggest that the new remedy had come to stay ; that it was in their interest to devise machinery in order to facilitate a recourse to arbitration and a method of procedure in order to bring the issue to a decision.
The Institute of International Law, founded in 1873, upon the initiative of the American publicist, Francis Lieber, and through the efforts of the Belgian publicist, Rolin-Jaequemyns, foresaw the need and the advantages of a code of arbitral procedure, and within a year after its organization drafted a code which served as the basis of discussion at the First Hague Conference, and which with sundry
i Fellow's John Jay, pp. 267-8.
XH INTRODUCTION
amendments, not always for the better, was adopted by that august assembly. It was not only the jurists who foresaw the necessity of facilitating a recourse to arbitration and provided the means therefor ; men in public life felt the need and took appropriate steps to meet it. Thus through the happy cooperation of Mr. William Randel Cremer, a labor Member of Parliament, and Frederic Passy, then a Member of the French Chamber of Deputies, the Interparliamentary Union was formed in 1888, and held its first meeting in Paris the next year, on the centenary of the French Revolution. At the meeting of the Union at The Hague in 1894, five years before the great and fertile idea of the Czar took visible form and shape in the capital of the Netherlands, the following resolution was voted:
1. National sovereignly remains inalienable and inviolate;
2. Adherence by any government to the creation of a permanent international court must be entirely voluntary;
3. All adhering States must be on a footing of perfect equality before the permanent international court;
4. The decision of the permanent court must have the force of decisions, subject to execution.1
These enlightened and practical men of affairs foresaw that arbitra- tion should have its machinery just as the jurists of the Institute of International Law foresaw the need and provided a code of proce- dure for international tribunals. A year later, that is to say, in 1895, at the Brussels session, a project based upon these resolutions was adopted by the Interparliamentary Union, and this draft of a Perma- nent Court of Arbitration,2 like the draft of arbitral procedure of the Institute of International Law, served as the basis of discussion at the Czar's Conference held at The Hague in 1899, where it was ac- cepted in principle, adopted with many modifications and put into effect.
On the twelfth day of August, 1898,8 the staid and sedate diplomats accredited to the Court of St. Petersburg were astonished to receive from the hands of Count Mourawieff, Russian Minister for Foreign Affairs, a circular note proposing a conference to consider the question of the limitation of armaments, and the burdens which they had im- posed, which, in the opinion of the Czar, were unendurable in them- selves and fatal to economic and social progress. On December 30, 1898,4 a second circular modifying the first and elaborating it in certain
1Langc, Union Interparlementaire. Resolutions des Conferences et Decisions principals du Conseil. 2d ed., 1911, p. 50. *Ibid., p. 53.
"August 24. 1898. new style. 4 January 11, 1899, new style.
INTRODUCTION Xlll
respects, was handed to the same staid and sedate but rtow somewhat expectant diplomats accredited to The Hague, proposing not only definitely the Conference, but outlining its program, of which the fol- lowing article alone is important for present purposes :
Acceptance, in principle, of the use of good offices, mediation, and voluntary arbitration, in cases where they are available, with the purpose of preventing armed conflicts between nations ; under- standing in relation to their mode of application and establishment of a uniform practice in employing them.1
This assembly, known in history as the First Hague Peace Con- ference, which it is devoutly to be hoped will be only the first of an endless series of conferences meeting at The Hague, basing its action upon the proposal of the Interparliamentary Union, created the so- called Permanent Court of Arbitration, in reality, machinery by which a temporary tribunal can be created; and, basing its action upon the code of procedure of the Institute of International Law, drafted a code of arbitral procedure for adoption by the nations. It has gen- erally been supposed that the proposal to establish a Court of Arbitra- tion was due to American initiative, and it appears to be the fact that the American delegation was the only one sent to The Hague with specific instructions on this point and a definite plan for an Interna- tional Court of Arbitration. It is, of course, well known to all persons interested in the subject that the proposal to establish a Court of Arbitration was made in the First Conference2 by the first British delegate, Lord, then Sir Julian Pauncefote, and the reason for such a proposal and the agreement to make it were stated only recently at the dinner of the American Society for the Judicial Settlement of International Disputes, held at Washington on December 6, 1913, by a person who was in a position to know whereof he spoke. The Honorable David Jayne Hill, at that time Assistant Secretary of State, later our distinguished Ambassador to Berlin, lifted the curtain and showed the setting of the stage. Mr. Hill said:
One day [in the month of November, 1898] the door of my office opened, and the genial face of John Hay appeared. He walked into my room saying, "I have brought you a visitor''; and Lord Pauncefote, following, as the door was swung open, entered the room. Mr. Hay said, "Lord Pauncefote has brought to the department a little pamphlet about international justice.
1 Scott, The Hague Conventions and Declarations of 1899 and 1907, 2d ed., p. xviii. *Procds-verbaux, pt. i, p. 134; pt. iv, p. 3.
XIV INTRODUCTION
He has come to talk with regard to the answer to be given to the Czar's rescript calling the Conference at The Hague. I think you have thought a little about that subject, and I believe you have written something upon it. Won't you sit down with Lord Pauncefote and discuss it?" And so that venerable diplomat and jurist sat down with me and for half an hour we discussed this subject. "It is quite impossible," he said very calmly, "that any- thing should be done at that Conference in the direction of dis- armament or of arresting armament; but isn't it possible that there should be a movement in the direction of a court of arbitration P"1
After relating this very interesting incident, Mr. Hill proceeded:
I will not detain you very long upon that. The instructions of our department to our delegation sent to The Hague contained a brief history of the peace movement in America and a plan for an international court. The British Government also instructed Lord Pauncefote to propose, at the opportune moment, if an opportune moment ever came, in the Hague Conference, a tribunal of arbitration; and that was done by him. Afterward, a similar proposal was made by the Russian Government, but no proposal of that kind had been contained in the original rescript of the Czar.
The result . . . was that the First Hague Conference produced important conventions, the chief of which was the Convention for the pacific settlement of international disputes; but almost as nugatory as the idea of disarmament, was the idea that a merely diplomatic court, such as this arbitral tribunal was designed to be, would ever settle the differences between nations in any judicial way.2
Mr. Hill's modesty did not permit him to say that the pamphlet which Lord Pauncefote held in his hand, to which Mr. Hay so gently and smilingly referred, was none other than the pamphlet entitled "International Justice,"8 which Mr. Hill had written upon the subject and which Mr. Hay had himself given to Sir Julian. Mr. Hill's modesty likewise prevented him from saying that it was his own hand that drafted the instructions which Mr. Hay approved and signed, containing "a brief history of the peace movement in America, and a plan for an international court." The pamphlet on international jus- tice, which figured so prominently when the fate of the Hague Con- ference hung in the balance, thus ends in language which is as timely to-day as when it was written in 1896:
^Proceedings of Fourth National Conference of the American Society fsr Judicial Settlement of International Disputes, 1913, PP- 383-4. */&«*., p. 384. 3Printed in the Yale Law Journal, October, 1896, p. 1.
INTRODUCTION XV
All that has yet been said or written upon this great problem probably constitutes little more than the rude scaffolding of that great temple of international justice whose dome will yet shelter the nations of the earth from the wrongs of oppression and the horrors of battle. But its foundations are laid in the moral nature of humanity ; and, although — like a vast cathedral grown old with passing centuries — it is still uncompleted, we may bring our un- hewn stones to lay upon its rising walls, in the faith that its invisible Builder and Maker will shape them to a place in the permanent structure.
Reserving for later consideration the service which can be expected of a diplomatic court, to use Mr. Hill's language, it is advisable to consider somewhat in detail the court which he termed diplomatic, but which the Conference preferred to call the "Permanent Court of Arbitration of The Hague."
The Conference stated, in Article 15 of the Convention for the pacific settlement of international disputes, the object of interna- tional arbitration to be "the settlement of differences between States by judges of their own choice, and on the basis of respect for law," and in the 16th article it recognizes arbitration as the most ef- fective and most equitable method of settling disputes of a legal nature which diplomacy has failed to settle, especially in the interpretation and application of international conventions. For the purpose of facilitating an immediate recourse to arbitration in such cases the signatory Powers agreed in Article 20 of this Convention "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." That is to say, the Conference declaring arbitration to be effective and equitable especially in questions of a legal nature, or, as we would say, in questions of a justiciable nature, proposed to facilitate the recourse to arbitration by creating the necessary machinery to carry into effect the recommenda- tion of the Interparliamentary Union, and inserted in the Convention rules of procedure to give effect to the recommendation of the Insti- tute of International Law.
Now the Permanent Court was, according to Article 21, to receive and to decide all cases of arbitration, unless the parties agreed to insti- tute a special tribunal without reference to the pacific settlement Convention. The Court must have judges ; therefore the Conference provided in Article 23 that within three months after the ratifica- tion of the Convention "each signatory Power shall select four per-
XVI INTRODUCTION
sons at the most, of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of arbitrators." These persons were to be appointed for a period of six years; they were to be eligible for reappointment, and their names were to be inscribed in a list to be placed in the Inter- national Bureau created by Article 22 of the Convention, to serve as a clerk to the Court.
The next step to be taken was the creation of a temporary tribunal from the list of the judges inscribed in the Bureau, and notified to the signatory Powers, and according to Article 24, the procedure to be observed was as follows:
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.
The seat of the tribunal was to be at The Hague, and its place of session was only to be altered with the assent of the parties (Article 25). A body called the "Permanent Administrative Council," com- posed of the diplomatic representatives of the signatory Powers ac- credited to The Hague, was to organize the International Bureau which when organized was to be placed under its direction and control, to notify to the Powers the constitution of the Court, to provide for its installation, and in general to supervise the Court and the Bureau, whose expenses were to be borne by the signatory Powers in the pro- portion fixed for the International Bureau of the Universal Postal Union.
Such were the provisions concerning the Court adopted by the Con- ference, recommended to the twenty-six Powers participating therein, and ratified by them without exception, and to which all the Powers invited to the Second Hague Conference, some forty-four in number, have since adhered.
The provisions of the Convention of 1899 have been modified in only one essential point, which it is necessary to consider in this place. It will be observed that under Article 24, as quoted, each of the Powers in dispute could select two arbitrators both of whom could be its sub-
INTRODUCTION Xvii
jects or citizens. This meant that in all probability four of the five judges would be interested in the outcome of the proceedings, with the result that the dispute either would or could be decided by the um- pire, who was likely to be the only disinterested and therefore impar- tial person. The second Hague Conference of 1907 modified this procedure by providing in Article 45 of the revised Convention that "Each party appoints two arbitrators, of whom one only can be its national or chosen from among the persons selected by it as members of the Permanent Court." That is to say, three persons constituting a majority of the Court were to be disinterested parties, so that the decision of the case would rest in their impartial hands.
Now what was the nature of the institution created by the First Conference? Its framers considered that they had established not merely a Court, but a Permanent Court, for they so said. But it is difficult to call a Court "Permanent," which does not exist, and which only comes into being when it is created for the trial of a particular case, and goes out of existence as soon as the case is tried. It is difficult to consider as a court, a temporary tribunal, which is not com- posed of judges, because by Article 24 of the Convention of 1899 the tribunal does not exist, but is to be created. It is therefore difficult to see how the Court is "accessible at all times," when, as a matter of fact, it does not exist, and only becomes accessible when it has been cieated by the parties in litigation and is then only accessible to them. The Conference did not call the creature of their hands a court of justice. It was to be one of arbitration, and in Article 15 they de- fined what they meant by arbitration, stating that it is "the settlement of differences between States by judges of their own choice, and on the basis of respect for law." That is to say, differing from courts of justice, the judges are to be of the choice of the parties in controversy ; whereas judges of the parties in litigation are rigorously excluded from national courts of justice. Again, the decision is to be on the basis of respect for law, which does not mean necessarily that the decision is to be reached by the impartial and passionless application of prin- ciples of law, as in the case of municipal courts, but the decision is to be reached "on the basis of respect for law," which may be a very different matter.
Three delegates to the Second Hague Conference, two of whom had attended the First Conference and had taken an active part in the creation of the so-called Permanent Court, spoke their minds freely on the nature of the Court. The late Mr. Asser said :
XV111 INTRODUCTION
Instead of a Permanent Court, the Convention of 1899 only created the phantom of a court, an impalpable ghost, or, to speak more plainly, it created a clerk's office with a list.1
The late Mr. de Martens, whose interest in arbitration has been so keen and his success as an arbitrator so marked that he has been called the Chief Justice of Christendom, said:
What, then, is this court whose judges do not even know each other? The Court of 1899 is only an idea which sometimes takes the form of body and soul and then disappears again.2
Finally, an American delegate to the Second Conference stated :
In a word, the Permanent Court is not permanent, because it is not composed of permanent judges; it is not accessible because it has to be formed for each individual case; finally, it is not a court, because it is not composed of judges.8
It is not disrespectful to point out the real nature of an institution, even though the result may be to show that it is not what its name would seem to imply, and that instead of being a Permanent Court, it is merely a list of the names of persons kept in a Bureau at The Hague, from which nations in controversy can select five persons to form a temporary tribunal. This right of selection of arbitrators nations have always possessed, and doubtless in many cases they would have ch&sen the very persons inscribed in the list at The Hague. But it is only fair to say that the machinery, however imperfect, de- vised by the First Hague Conference has nevertheless rendered in- estimable services to the cause of arbitration by putting the stamp of approval of an international conference upon arbitration as a means of settling difficulties, and by turning the minds and the thoughts of nations in controversy to The Hague, where this temporary tribunal of a very special kind can be called into being for the settlement of their disputes which diplomacy has failed to adjust.
A proposition had been made at the First Conference to conclude a treaty of arbitration, pledging the Powers to submit certain categories of disputes to arbitration without reservation of any kind. The prop- osition was rejected, owing to the unyielding opposition of Germany and Article 19, the material portion of which has been quoted, seemed to register defeat instead of a triumph. And yet a triumph it was,
*Actes et documents, vol. ii, p. 315. 2/Md., p. 322. p. 315.
INTRODUCTION XIX
because the great series of treaties beginning with the Treaty of Octo- ber 14, 1903, between Great Britain and France, and including the twenty-six treaties which Mr. Root negotiated during his Secretaryship of State, are based upon the reserved right contained in this article. We are, therefore, not justified in belittling the Permanent Court of The Hague, which is in reality a permanent list of judges, although it is both proper and necessary that the exact nature of this institution be pointed out. Faulty as it is, it has advanced the cause of arbitration more perhaps than any single act of recent times.
But it is not enough to have a court or machinery by which a tem- porary tribunal can be devised; there should, in the interest of dis- putants, be uniform procedure to be applied in the conduct of a case. This is what the First Conference provided, adopting as the basis of its discussion the code of arbitral procedure drafted by the Institute of International Law.
Article 30 of the Convention is thus worded:
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.
It will be observed, however, that the code of procedure is drafted to encourage the development of arbitration, and that the Powers agree upon the rules laid down as applicable to arbitral procedure. It is also to be noted that they do not bind themselves to accept the rules, reserving to themselves the right to agree upon other rules if they so desire. This is a familiar device of diplomacy to adopt in fact, al- though leaving the parties free in form not to adopt if they so desire. If the parties in dispute agree to submit the difference to arbitration, they sign, according to Article 31, a "special act (compromis), in which the subject of the difference is clearly defined, as well as the extent of the arbitrators' powers." In the revision of this article by the Second Conference a number of important changes and additions are made. Thus, "the compromis likewise defines, if there is occasion, the manner of appointing arbitrators, any special powers which may eventually belong to the tribunal, where it shall meet, the language it shall use, and the languages the employment of which shall be author- ized before it, and, generally speaking, all the conditions on which the parties are agreed" (Article 52).
This is a very necessary proceeding because without defining the dispute and determining the extent of the arbitrators' powers, there
XX INTRODUCTION
is nothing definite for submission to the arbitrators, and the duty of the arbitrators in the premises is not stated.
"The parties have the right," according to Article 37, "to appoint delegates or special agents to attend the tribunal," constituted in the manner already described, to serve as intermediaries between the Powers and the tribunal, and the parties in dispute have likewise the right to appoint counsel or advocates to appear before the tribunal and to present the views of the governments in conflict. The agent here mentioned is appointed by the government in controversy to prepare and to present its case to the tribunal, and to represent the government in its political capacity before the tribunal. The agent may or may not argue the case ; but it is only he, not the counsel, who can bind the government, as the counsel is merely authorized to argue the case as a lawyer or barrister argues the case of his client.
The question arose at the Second Conference whether the members of the Permanent Court might act as agents or counsel, and although the American delegation urged that the members of the Permanent Court should not be permitted to act as agents or counsel as it was grossly improper for members of a court to appear before it, either in a political or professional capacity, the Conference rejected the con- tention of the American delegation on the theory that the members of the Court were not really judges ; but acceded to it in part by pro- viding that the members of the Permanent Court could only appear as agent or counsel on behalf of the Power which had appointed them members of the Court (Article 62).
The Conventions divide arbitral procedure into two distinct phases called "pleadings and oral discussions" (Article 39, Convention of 1899; Article 63, Convention of 1907). The pleadings are the cases made by the contending governments, delivered to each other and laid before the Court for the information and consideration of the judges. In other words, they are the written documents which the nations con- sider necessary or advisable to submit to the tribunal. The oral dis- cussions are the arguments of the contending nations made by their agents, counsel, or advocates, and the agents and counsel are author- ized by Article 45 to "present orally to the tribunal all the arguments they may think expedient in defense of their case," and by Article 46 "they have the right to raise objections and points," upon which, how- ever, "the decisions of the tribunal" are "final, and can not form the subject of any subsequent discussion."
The discussions or oral pleadings are under the direction of the
INTRODUCTION Xxi
president (Article 41). The tribunal takes into consideration the documents presented to it ; by Article 43 it "is free to take into con- sideration fresh acts or documents to which its attention may be drawn by the agents or counsel of the parties ;" by Article 44 it can, in addi- tion, "require from the agents of the parties the production of all acts, and can demand all necessary explanations ;" and, "in case of refusal, the tribunal takes note of it."
The discussions, as previously stated, are under the direction of the President, but the members of the tribunal have, according to Article 47, "the right to put questions to the agents and counsel of the parties, and to demand explanations from them on doubtful points." But neither the questions put nor remarks made by the members are to be regarded as expressions of opinion. The tribunal is specifically authorized by Article 48 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." A tribunal is universally regarded as competent to interpret a compromis, and it was therefore not necessary to state it, but it was perhaps well to do so in order to avoid doubt or discussion.
It is also competent to interpret the other treaties invoked in the case, or as the revision of 1907 says, in Article 73, "the other papers and documents." It is of course authorized to apply the principles of international law, for in the absence of an agreement of the contend- ing countries excluding the law of nations and laying down specifically the law to be applied, international law is the law of an international tribunal.
After the agents and counsel have submitted the case or cases, the oral proceedings are closed and the judges withdraw to consider the case and to reach their conclusion, which may be the opinion of all or of a majority. The award "given," as Article 52 says, "by a majority of votes, is accompanied by a statement of reasons. It is drawn up in writing and signed by each member of the tribunal." The revision of this article prescribes that "the award must give the reasons on which it is based. It contains the names of the arbitrators ; it is signed by the president and registrar or by the secretary acting as registrar" (Article 79 of the Convention of 1907). The meaning of this is that the opinions of the judges are not to be made known, for Article 78 of the revised Convention provides that "the proceedings remain se- cret." According to the revision it is signed by the president and an officer of the court, not as indicating the opinion of the president, but
XX11 INTRODUCTION
as certifying that the opinion thus signed is in very truth the opinion of a majority of the tribunal.
The award when drafted is read at a public meeting of the tribunal in the presence of the agents and counsel, or in their absence if they have been duly summoned (Article 53). The award according to Article 54 puts an end to the dispute definitively and without appeal, and, ac- cording to expressed provisions of the Convention, the agreement to arbitrate implies an agreement to abide by and to execute the pro- visions of the award (Article 18 of 1899; Article 37 of 1907).
The question as to whether the award was subject to revision was much debated at the First Conference, and it was sought to reopen it at the Second. It was strenuously maintained by the American delegation to the First Conference that the award was subject to reconsideration, and the homely statement of President Lincoln was quoted, "that nothing is settled until it is settled right." On the other hand, it was insisted that the award was final, that it could not be, and, even if it could, that it should not be reopened. The late Mr. de Martens was especially insistent that the purpose of the award was really to settle the dispute, whereas the American delegation insisted, and with better reason it would seem, that the purpose was not merely to settle the dispute, but to settle it right. The result was the following com- promise, due to Mr. Asser's deft hand, forming Article 55 of the Convention of 1899 and Article 83 of the revised Convention:
The parties can reserve in the compromis the right to demand the revision of the award.
In this case and unless there be a stipulation to the contrary, the demand must be addressed to the tribunal which pronounced the award. It can only be made on the ground of the discovery of some new fact calculated to exercise a decisive influence upon the award and which was unknown to the tribunal and to the party which demanded the revision at the time the discussion was closed.
Proceedings for revision can only be instituted by a decision of the tribunal expressly recording the existence of the new fact, recognizing in it the character described in the preceding para- graph, and declaring the demand admissible on this ground.
The compromis fixes the period within which the demand for revision must be made.
It does not seem to be necessary to comment upon the provisions of this article, as they are reasonably clear and definite, other than to say that it is the undoubted right of sovereign nations to reserve the right
INTRODUCTION xxiil
to demand the revision of an award, and it seems strange that if it be the right of sovereign nations to agree on matters of the most vital importance, it should be necessary to reserve the right to revise an award.
What is the effect of the award? As between the parties it is final, unless the right to revision has been reserved. It affects only the parties to it. This is familiar doctrine, and is to be found in Article 56 of the original Convention and Article 84 of the Second Convention. The article in question, however, allows a third party to intervene in a case affecting it, in which event the award naturally binds it, otherwise not. It may be, however, that a dispute arises as to the interpretation and execution of the award, admitting that it is final. The Second Conference considered this question and provided the following means of settling disputes of this kind in Article 82 :
Any dispute arising between the parties as to the interpretation and execution of the award shall, in the absence of an agreement to the contrary, be submitted to the tribunal which pronounced it.
The Second Peace Conference, held at The Hague in 1907, revised the pacific settlement Convention in the light of experience but did not change it in essentials. It may be considered, as it doubtless is, a better document, but the Permanent Court of Arbitration is the Court of 1899, the arbitral procedure is the procedure slightly modified of 1899, although it must be admitted that the temporary tribunal composed of three disinterested arbitrators makes a nearer approach to a judicial tribunal than its prototype of 1899. The one important addition of the Second Conference, distinguished from sundry amendments, is due to the French delegation. It is the creation of sum- mary procedure (Articles 86-90) by means of a smaller tribunal com- posed of three judges, one appointed by each of the two litigating par- ties with a disinterested umpire chosen by the arbitrators. Each party is represented by an agent serving as an intermediary between his government and the tribunal, not by counsel or advocates; the pro- ceedings are in writing, with the right reserved to each party to ask that witnesses and experts be called, and with the right reserved to the tribunal to demand oral explanations from the agents as well as from the experts and witnesses. It is, of course, within the province of the countries to modify these provisions and to appoint counsel for them, should they desire; but the purpose of the innovation is that the delays incident to arbitration be avoided and that the procedure be summary in fact, as well as in theory.
XXIV INTRODUCTION
The First Hague Peace Conference has another institution to its credit: the so-called international commission of inquiry, which has already justified its existence and shown that it is capable of rendering great services in ascertaining facts in dispute, if only the nations are willing to pledge themselves to resort to it and actually do so resort to it. Article 9 of the Convention creates the new institution, and for this reason it is quoted:
In differences of an international nature involving neither honor 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 impar- tial and conscientious investigation.
It will be observed that the purpose of the commission is to find the facts involved in the dispute "by means of an impartial and con- scientious investigation" in the expectation and, indeed, in the belief that, the facts being found, the dispute will either be settled by their determination, or that the parties themselves will apply the principles of law to the facts, or refer the legal questions to a tribunal of arbitra- tion for its award. It is also to be noted the careful, not to say timid, way in which the nations created a moral rather than a legal obliga- tion. The Powers do not agree, they recommend (in the revision of 1907 the contracting Powers deem it expedient and desirable), and the recommendation is not unqualified for it is "as far as circumstances allow"; and finally, lest they should, through inadvertence, bind them- selves upon questions involving honor or vital interests, such questions are excluded from the scope of the recommendation. However, it is better to grope in the dark, if dark it be, than to make a leap in the dark, and it is just by such uncertain and questioning steps that per- manent progress is made in matters international.
Supposing that the Powers comply with the recommendation, con- stitute the commission and submit the facts in dispute to its determina- tion, the result is a report limited, as Article 14 says, to a "statement" which has not, in any way, the character of an arbitral award. "It leaves the conflicting Powers entire freedom as to the effect to be given to this statement." It was the earnest desire of the Russian delegation at the First Conference to create a legal obligation instead of a recom- mendation to submit disputed facts to a commission of inquiry. And it was also the hope of the Russian delegation at the Second Confer-
INTRODUCTION XXV
ence to add a clause to the 14th article, by which thfc parties bind themselves to settle the dispute on the facts thus found, or to submit the dispute to arbitration, thus removing it definitely from the field of controversy.1
It was thought best, however, to treat the commission of inquiry as a jury finding facts without imposing upon it the functions of a court, or without binding the nations to take further and definite action. The opposition to this change of the Russian Government was very general, although in the Dogger Bank Case,2 the very first case sub- mitted to a commission of inquiry, the parties in dispute, namely, Great Britain and Russia, invested the commission, not merely with the duty of determining the facts in dispute, but of finding liability as well. The opposition to the original proposition of an agreement to submit facts in dispute to an international commission instead of a recommendation to find the facts gave rise to a protracted and heated discussion, due to the unwillingness of the Balkan States to accept the commission on the ground that its creation menaced the rights of small Sates.8
It is not necessary to discuss the details of procedure devised by the First Conference and modified by the Second other than to say that the original Convention was to be constituted, unless the Powers should decide otherwise, in the same manner as the temporary tribunal of the Permanent Court, and that the Powers in dispute agreed to supply the commission "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 12). The revised Convention of 1907 has very much enlarged the provisions of the articles relating to the commission of inquiry by setting out, at length, the details of the procedure to be followed. This is, no doubt, both helpful and wise, as parties in controversy are not in a frame of mind to devise a method of procedure, but for present purposes it is not necessary to consider those details as they are to be found in the Conventions annexed to this introduction.4
It will be recalled, that, in the passage quoted from Mr. Hill, he suggested that the Permanent Court of The Hague was merely diplo- matic and that it was almost futile to believe that such a diplomatic body "would ever settle the differences between nations in any judicial way." The reasons for his belief he stated in the following passage
*Actes et documents, vol i, p. 415.
2For the North Sea or Dogger Bank Case, see post, p. 403.
8Scott, The Hague Peace Conferences of 1899 and 1907, vol. i, pp. 77, 78, 307.
4Post, p. xxxiv.
XXVI INTRODUCTION
taken from his address before the meeting of the Judicial Settlement Society held in 1913:
That Conference was made up almost entirely of diplomatists, was conducted almost exclusively in the diplomatic spirit, and its results were of a purely diplomatic nature. There was nothing binding. There was nothing that looked strongly in the direction of judicial decisions, in the proper sense. The idea was that judges selected by the different Powers were to be convoked whenever there was a case to be tried, and they would try to com- pose the difficulty ; and, as one of the most eminent jurists in that Conference said, "The object is not to render justice, but to settle and to end the dispute." That is to say, the object was not to do what was intrinsically right, but to do that which the loser would feel obliged, in the circumstances, to accept.1
The purpose of the present introduction is not to be unduly critical, but to show exactly what was done by the first Conference in the matter of establishing an international court of justice. And it is abundantly clear by the analysis of the provisions of the Convention creating the court and from the statements of Messrs. Asser, de Martens and Hill that the idea of a court was proposed rather than devised at the Conference.
At the Second Hague Conference, held in 1907, the American dele- gation was instructed by the then Secretary of State, Mr. Elihu Root, to advocate a truly permanent international court, to be formed of judges acting under a sense of judicial responsibility. A joint project of Germany, Great Britain and the United States, with the warm-hearted and outspoken support of France, was proposed, and after weeks of discussion a draft convention of thirty-five articles, dealing with the composition, jurisdiction and procedure of a perma- nent international court, composed of judges, as distinct from arbitra- tors, was adopted. Owing to the inability to hit upon a method of appointing the judges acceptable to the States generally, the Confer- ence contented itself with the draft convention adopted by the Confer- ence and the recommendation that it should be put into effect as soon as an agreement could be reached through diplomatic channels upon the method of appointing the judges and the constitution of the court. The Court of Arbitral Justice, for this was the name of the new institution, although it should have been called more simply and accu- rately the International Court of Justice, was thus agreed to in prin-
*Proceedings of Fourth National Conference of the American Society for Judicial Settlement of International Disputes, 19/3, p. 384.
INTRODUCTION XXV11
ciple and requires only the cooperation of a limited number of Powers, for no number is specified in the recommendation, to establish it in fact. When this is done there will be in existence a permanent inter- national court of justice, composed of trained judges, permanently in session through a committee thereof at The Hague, ready to receive and capable of deciding all justiciable questions, which may be sub- mitted to it by the countries composing the society of nations.
There will always be a field for the so-called Permanent Court of Arbitration and a truly permanent Court of Justice because nations may well prefer, in acute disputes where their policy is involved, to refer the controversy to arbitrators of their own choice in order to adjust conflicting interests rather than to submit differences of a political nature to a court of justice to be decided according to prin- ciples of law. And, on the other hand, there are nations that, no doubt, would prefer to submit their justiciable disputes when and as they arise, to an international court of justice to be decided according to principles of law, so that those disputes, insignificant in their begin- ning, may not assume political importance, embitter the relations of nations and render it easier for them to drift unconsciously, it may be, into war. That wise and shrewd man of affairs, the venerable Dr. Franklin, said : "It is in human nature that injuries as well as benefits received in times of weakness and distress, national as well as per- sonal, make deep and lasting impressions; and those ministers are wise who look into futurity and quench the first sparks of misunder- standing between two nations which, neglected, may in time grow into a flame, all the consequences whereof no human prudence can fore- see, which may produce much mischief to both, and can not possibly produce any good to either."1
The service which the Permanent Court of Arbitration and which the International Court of Justice would render and the reasons which would justify the retention of the former and the creation of the latter were thus admirably stated by Mr. Leon Bourgeois at the Second Hague Conference:
As Mr. Asser has said : "There must be judges at The Hague." If there are at present no judges at The Hague, it is because the Conference of 1899, taking into consideration the whole field open to arbitration, intended to leave to the parties the duty of choosing their judges, which choice is essential in all cases of peculiar gravity. We should not like to see the court created in
1Letter of Benjamin Franklin, dated December 22, 1779, to R. Bernstorf, Minister of Foreign Affairs in Denmark. Wharton, Diplomatic Correspondence of the American Revolution, vol. iii, p. 435.
XXV111 INTRODUCTION
1899 lose its essentially arbitral character, and we intend to pre- serve this freedom in the choice of judges in all cases where no other rule is provided.
In controversies of a political nature, especially, we think that this will always be the real rule of arbitration, and that no nation, large or small, will consent to go before a court of arbitration unless it takes an active part in the appointment of the members composing it.
But is the case the same in questions of a purely legal nature? Can the same uneasiness and distrust appear here ? And does not every one realize that a real court composed of real jurists may be considered as the most competent organ for deciding contro- versies of this character and for rendering decisions on pure ques- tions of law?
In our opinion, therefore, either the old system of 1899 or the new system of a truly permanent court may be preferred, accord- ing to the nature of the case. At all events there is no intention whatever of making the new system compulsory. The choice between the tribunal of 1899 and the court of 1907 will be op- tional; and, as Sir Edward Fry has so well said, experience will show the advantages or disadvantages of the two systems.1
The following resolution was unanimously adopted by the Institute of International Law at its session in Christiania in 1913:
While recognizing the great value of the Court of Arbitration, instituted by the Peace Conference of 1899, to international jus- tice and the maintenance of peace;
The Institute of International Law:
In order to facilitate and to hasten recourse to arbitration; to assure the settlement of differences of a legal nature by arbiters representing the different systems of legislation and of juris- prudence ;
In order to reinforce the authority of the tribunals in the eyes of the representatives of the parties in controversy by having the members of the tribunal known to them in advance, and likewise to increase the moral force of the decision by having it rendered by a larger number and by the authority of arbiters recognized by the totality of the States ;
In order to resolve, in case of a treaty of compulsory arbitra- tion containing a clause to this effect, the doubts which might arise as to whether or not a particular controversy belongs to the category of questions subject to compulsory arbitration under the treaty;
In order to create a court of appeals for decisions rendered by tribunals constituted otherwise than in conformity with the rules of the Hague Convention, in case the special compromis should provide for the possibility of such a revision;
^Actes et documents, vol ii, pp. 347-8.
INTRODUCTION XXIX
Considers it highly desirable that satisfaction be given to the first vceu adopted by the Second Peace Conference in favor of the establishment of a Court of Arbitral Justice.1
It will be observed that there is no provision in the original or re- vised Convention for the pacific settlement of international dis- putes for the use of force either to compel nations to submit their disputes to the so-called Permanent Court at The Hague or to an in- ternational commission of inquiry, and there is likewise no provision for the use of force to secure compliance with the decision of the temporary tribunal of the so-called Permanent Court or to compel the nations to take further action upon the report of the international commission. The Conventions for the pacific settlement of interna- tional disputes state simply that the agreement to arbitrate implies the engagement to submit loyally to the award (Article 18 of the Con- vention of 1899; Article 37 of the revised Convention of 1907).
Experience had with arbitration justifies the action of both Confer- ences in this respect, for the awards of arbitral tribunals have in- variably been complied with, although there may have been grumbling and delay and, in some cases, a modification of the award itself. If such is the result of experience it would seem wise to allow experience to decide whether, in the future, a sanction be necessary in the mat- ter of awards, and it is also better to allow experience to decide whether some form of sanction be necessary in order to compel nations to submit their disputes to the so-called Permanent Court, and their justiciable disputes to a permanent international court, when they shall have specifically agreed to do so. The American delegation to the Second Hague Conference drafted several articles which provided that nations might resort freely to the permanent court to be created, and that the defendant nation might, upon the application of the plain- tiff nation, be invited by the court to attend and to litigate the ques- tion, not summoned or hailed before the court.
The Articles referred to, which have had the good fortune to meet with the approval of eminent publicists,2 are:
ARTICLE 12. The Permanent Court of Arbitration shall not be competent to receive or consider any petition, application or com- munication whatever from any person natural or artificial except a sovereign State, nor shall it be competent to receive any appli-
lAnnuaire de I'Institut de droit international, 1912, pp. 603-4.
2See an article by the distinguished Belgian publicist, Professor Nys, entitled 'The Development and Formation of International Law," in the American Jour- nal of International Law, vol. 6, pp. 308-10.
XXX INTRODUCTION
cation or petition from any sovereign State unless it relates ex- clusively to a difference of an international character with another State which diplomacy has failed to settle and which is not political in character and does not affect the honor, independence or vital interests of any State.
ARTICLE 13. The Permanent Court of Arbitration shall not take any action on any petition or application which it is compe- tent to receive unless it shall be of the opinion that a justiciable case, and one which it is competent to entertain and decide and worthy of its consideration, has been brought before it, in which case it may in not less than thirty or more than ninety days after presentation of the petition invite the other sovereign State to appear and submit the matter to judicial determination by the Court.
In the latter event the State so invited may (a) refuse to submit the matter; (b) refrain from submitting the matter by failing for
days to make any response to the invitation, in which
event it shall be deemed to have refused to submit the matter; (c) submit the matter in whole, or (d) offer to submit the matter in part or in different form from that stated in the petition, in which event the petitioning State shall be free either to accept the qualified submission or to withdraw its petition or application, and shall signify its election within a time to be determined by the Court; (e) appear for the sole purpose of denying the right of the petitioning State to any redress or relief on the petition or application presented — that is to say, it may except for demur; in case the court does not sustain this, it shall renew the invitation to appear and submit the matter.
ARTICLE 14. In case, however, the States in controversy can not agree upon the form and scope of the submission of the difference referred to in the petition, the Court of Arbitration may appoint, upon the request by either party, a committee of three from the members of the Administrative Council, none of whom shall rep- resent the States involved, without suggestion from either party, and the committee thus constituted shall frame the questions to be submitted and the scope of the inquiry, and thereafter if either party shall withdraw it shall be deemed to have refused to submit the matter involved to judicial or arbitral determination.
ARTICLE 15. The Administrative Council shall transmit to every signatory power a copy of every petition which may be submitted to the Permanent Court of Arbitration, and any power affected thereby shall have the right to present through the Administrative Council any matter bearing on the question involved which it sees fit to do, and any matter so presented shall be transmitted by the Administrative Council to every signatory Power.
The Permanent Court of Arbitration was installed in 1902, ready for cases that might be submitted to the temporary tribunal, formed from the list of judges inscribed in the International Bureau at The
INTRODUCTION XXXI
Hague. Two republics of the Western Hemisphere were the first to avail themselves of the institution and to confess their faith in this method of settling their disputes. Porfirio Diaz, President of Mexico, and Theodore Roosevelt, President of the United States of America, submitted the so-called Pious Fund Case1 in 1902 to the first temporary tribunal, formed from the list of judges composing the Permanent Court of Arbitration, thus starting this institution upon what is hoped will be a great and a beneficent career.
Whether the awards of the various temporary tribunals which have since been formed justify the expectations of the diplomats and jurists who founded it at the First Conference and confessed their faith anew in its efficacy at the Second Conference at The Hague, is left to the judgment of the intelligent reader. But the undersigned is unwilling to close this introduction without stating his opinion that the institution has unquestionably succeeded, although he is of the equally firm opinion that it can only be regarded as a first step, albeit a very long one, toward the creation of a truly permanent international court of justice, which, to use the happy phrase of Elihu Root, will be composed of judges acting under a sense of judicial responsibility. That the day may not be far distant when this consummation shall take place should be the hope and prayer of every partisan of justice and of every lover of his kind. We must have agencies which will settle the disputes between nations without jeopardizing civilization, for we dare not forget that although "there are many nations there is only one civilization."
JAMES BROWN SCOTT, Director of the Division of International Law.
WASHINGTON, D. C., February 28, 1916.
. p. 1.
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
[ORIGINAL TEXTS*]
1899
Convention pour le Reglement
Pacifique des Conflits Interna-
tionaux.
Sa Majeste 1'Empereur d'Alle- magne, Roi de Prusse; [etc.:]
Animes de la ferme volonte de concourir au maintien de la paix generate ;
Resolus a favoriser de tous leurs efforts le reglement amiable des conflits internationaux ;
Reconnaissant la solidarite qui unit les membres de la societe des nations civilisees;
Voulant etendre Tempire du droit et fortifier le sentiment de la justice internationale ;
Convaincus que Tinstitution permanente d'une juridiction ar- bitrate, accessible a tous, au sein des Puissances independantes, peut contribuer efficacement a ce resultat ;
Considerant les avantages d'une organisation generale et reguliere de la procedure arbitrale;
Estimant, avec 1'Auguste Initia- teur de la Conference Internatio- nale de la Paix, qu'il importe de consacrer dans un accord inter- national les principes d'equite et de droit sur lesquels reposent la securite des Etats et le bien- etre des peuples;
1907
Convention pour le Reglement Pacifique des Conflits Interna- tionaux. Sa Majeste TEmpereur d'Alle-
magne, Roi de Prusse; [etc.:] Animes de la ferme volonte de
concourir au maintien de la paix
generale ;
Resolus a favoriser de tous
leurs efforts le reglement amiable
des conflits internationaux;
Reconnaissant la solidarite qui unit les membres de la societe des nations civilisees;
Voulant etendre Tempire du droit et fortifier le sentiment de la justice internationale;
Convaincus que Tinstitution permanente d'ane juridiction ar- bitrale, accessible a tous, au sein des Puissances independantes, peut contribuer efficacement a ce resultat ;
Considerant les avantages d'une organisation generale et reguliere de la procedure arbitrale ;
Estimant avec 1'Auguste Initia- teur de la Conference Internatio- nale de la Paix qu'il importe de consacrer dans un accord inter- national les principes d'equite et de droit sur lesquels reposent la securite des fitats et le bien- etre des peuples;
*U. S. Statutes at Large, vol. 32, p. 1779; vol. 36. p. 2199. Italics indicate differ-, cnces between the Conventions of 1899 and 1907.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES [OFFICIAL TRANSLATIONS1]
1899
Convention for the pacific settle-
1907 Convention for the pacific settle-
ment of international disputes. ment of international disputes.
His Majesty the German Em- peror, King of Prussia ; [etc.] :
Animated by a strong desire to concert for the maintenance of the general peace;
Resolved to second by their best efforts the friendly settle- ment of international disputes ;
Recognizing the solidarity which unites the members of the society of civilized nations ;
Desirous of extending the em- pire of law and of strengthening the appreciation of international justice ;
Convinced that the permanent institution of a Court of Arbi- tration, accessible to all, in the midst of the independent Powers, will contribute effectively to this result ;
Having regard to the advan- tages attending the general and regular organization of arbitral procedure ;
Sharing the opinion of the au- gust initiator of the International Peace Conference that it is expe- dient to record in an international agreement the principles of equity and right on which are based the security of States and the welfare of peoples ;
His Majesty the German Em- peror, King of Prussia ; [etc.] :
Animated by the sincere desire to work for the maintenance of general peace;
Resolved to promote by all the efforts in their power the friendly settlement of international dis- putes ;
Recognizing the solidarity unit- ing the members of the society of civilized nations;
Desirous of extending the em- pire of law and of strengthening the appreciation of international justice ;
Convinced that the permanent institution of a tribunal of arbi- tration, accessible to all, in the midst of independent Powers, will contribute effectively to this re- sult ;
Having regard to the advan- tages attending the general and regular organization of the pro- cedure of arbitration;
Sharing the opinion of the au- gust initiator of the International Peace Conference that it is expe- dient to record in an interna- tional agreement the principles of equity and right on which are based the security of States and the welfare of peoples ;
1These translations are the official translations of the Department of State of the United States (Ibid.}, slightly revised in order to indicate by italics in the English texts also the differences between the two Conventions so indicated in the French texts.
XXXIV THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
Desirant conclure une Conven- tion a cet effet, ont nomme pour Leurs Plenipotentiaires, savoir:
[Denomination des Plenipoten- tiaires.]
Lesquels, apres s'etre com- munique leurs pleins pouvoirs, trouves en bonne et due forme, sont convenus des dispositions suivantes :
TITRE I. — Du MAINTIEN DE LA PAIX GENERALE
ARTICLE 1
En vue de prevenir autant que possible le recours a la force dans les rapports entre les fitats, les Puissances signataires convien- nent d'employer tous leurs efforts pour assurer le reglement paci- fique des differends internatio- naux.
TITRE II. — DES BONS OFFICES ET DE LA MEDIATION
ARTICLE 2
En cas de dissentiment grave ou de conflit, avant d'en appeler aux armes, les Puissances signa-
1907
Desireux, dans ce but, de mieux assurer le fonctionnement pratique des Commissions d'en- quete et des tribunaux d'arbi- trage et de faciliter le recours a la justice arbitrale lorsqu'il s*agit de litiges de nature a comporter une procedure sommaire;
Ont juge necessaire de reviser sur certains points et de com- puter I'ceuvre de la Premiere Conference de la Paix pour le reglement pacifique des conflits international?;
Les Hautes Parties contractan- tes ont resolu de conclure une nouvelle Convention a cet effet et ont nomme pour Leurs Pleni- potentiaires, savoir:
[Denomination des Plenipoten- tiaires.]
Lesqueis, apres avoir depose leurs pleins pouvoirs, trouves en bonne et due forme, sont con- venus de ce qui suit:
TITRE I. — Du MAINTIEN DE LA PAIX GENERALE
ARTICLE 1
En vue de prevenir autant que possible le recours a la force dans les rapports entre les fitats, les Puissances contractantes con- viennent d'employer tous leurs efforts pour assurer le reglement pacifique des differends interna- tionaux.
TITRE II. — DES BONS OFFICES ET DE LA MEDIATION
ARTICLE 2
En cas de dissentiment grave ou de conflit, avant d'en appeler aux armes, les Puissances con-
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
XXXV
1899
Being desirous of concluding a Convention to this effect, have ap- pointed as their plenipotentiaries, to wit:
[Here follow the names of plenipotentiaries. ]
Who, after communication of their full powers, found in good and due form, have agreed on the following provisions:
1907.
Being desirous, with this object, of insuring the better working in practice of commissions of in- quiry and tribunals of arbitration, and of facilitating recourse to ar- bitration in cases which allow of a summary procedure;
Have deemed it necessary to revise in certain particulars and to complete the work of the First Peace Conference for the pacific settlement of international dis- putes;
The high contracting Parties have resolved to conclude a new Convention for this purpose, and have appointed the following as their plenipotentiaries :
[Here follow the names of plenipotentiaries. ]
Who, after having deposited their full powers, found in good and due form, have agreed upon the following:
TITLE I. — ON THE MAINTENANCE OF THE GENERAL PEACE
ARTICLE 1
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.
PART I. — THE MAINTENANCE OF GENERAL PEACE
ARTICLE 1
With a view to obviating as far as possible recourse to force in the relations between States, the con- tracting Powers agree to use their best efforts to insure the pacific settlement of international differ- ences.
TITLE II. — ON GOOD OFFICES PART II. — GOOD OFFICES AND AND MEDIATION MEDIATION
ARTICLE 2
In case of serious disagreement or conflict, before an appeal to arms, the signatory Powers agree
ARTICLE 2
In case of serious disagreement or dispute, before an appeal to arms, the contracting Powers
XXXvi THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 ARTICLE 3
taires conviennent d'avoir re- cours, en tant que les circon- stances le permettront, aux bons offices ou a la mediation d'une ou de plusieurs Puissances amies.
Independamment de ce re- cours, les Puissances signataires jugent utile qu'une ou plusieurs Puissances etrangeres au conflit, offrent de leur propre initiative, en tant que les circonstances s'y pretent, leurs bons offices ou leur mediation aux fitats en conflit.
Le droit d'offrir les bons offices ou la mediation appartient aux Puissances etrangeres au conflit, meme pendant le cours des hos- tilites.
L'exercice de ce droit ne peut jamais etre considere par Tune ou 1'autre des Parties en litige comme un acte peu amical.
ARTICLE 4
Le role de mediateur consiste a concilier les pretentions op- posees et a apaiser les ressenti- ments qui peuvent s'etre pro- duits entre les foats en conflit.
ARTICLE 5
' Les fonctions de mediateur cessent du moment ou il est constate, soit par Tune des Parties en litige, soit par le mediateur lui-meme, que les moyens de conciliation proposes par lui ne sont pas acceptes.
ARTICLE 6
Les bons offices et la mediation, soit sur le recours des Parties en conflit, soit sur 1'initiative des Puissances etrangeres au con-
1907 ARTICLE 3
tractantes conviennent d'avoir re- cours, en tant que les circon- stances le permettront, aux bons offices ou a la mediation d'une ou de plusieurs Puissances amies.
Independamment de ce re- cours, les Puissances contrac- tantes jugent utile et desirable qu'une ou plusieurs Puissances etrangeres au conflit offrent de leur propre initiative, en tant que les circonstances s'y pretent, leurs bons offices ou leur media- tion aux fitats en conflit.
Le droit d'offrir les bons offices ou la mediation appartient aux Puissances etrangeres au conflit meme pendant le cours des hos- tilites.
L'exercice de ce droit ne peut jamais etre considere par 1'une ou 1'autre des Parties en litige comme un acte peu amical.
ARTICLE 4
Le role du mediateur consiste a concilier les pretentions op- posees et a apaiser les ressenti- ments qui peuvent s'etre pro- duits entre les fitats en conflit.
ARTICLE 5
Les fonctions du mediateur cessent du moment ou il est constate, soit par 1'une des Parties en litige, soit par le mediateur lui-meme, que les moyens de conciliation proposes par lui ne sont pas acceptes.
ARTICLE 6
Les bons offices et la mediation, soit sur le recours des Parties en conflit, soit sur 1'initiative des Puissances etrangeres au con-
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
XXXV11
1899 ARTICLE 3
to have recourse, as far as cir- cumstances allow, to the good offices or mediation of one or more friendly Powers.
Independently of this recourse, the signatory Powers recommend that one or more Powers, stran- gers 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 dis- pute, 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 4
The part of the mediator con- sists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at vari- ance.
ARTICLE 5
The functions of the mediator are at an end when once it is de- clared, either by one of the parties to the dispute, or by the mediator himself, that the means of recon- ciliation proposed by him are not accepted.
ARTICLE 6
Good offices and mediation, either at the request of the par- ties at variance, or on the initia- tive of Powers strangers to the
1907 ARTICLE 3
agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers.
Independently of this recourse, the contracting Powers deem it expedient and desirable that one or more Powers, strangers to the dispute, should, on their own in- itiative and as far as circum- stances 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 either of the parties in dispute as an unfriendly act.
ARTICLE 4
The part of the mediator con- sists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at vari-
ance.
ARTICLE 5
The functions of the mediator are at an end when once it is de- clared, either by one of the parties to the dispute or by the mediator himself, that the means of recon- ciliation proposed by him are not accepted.
ARTICLE 6
Good offices and mediation un- dertaken either at the request of the parties in dispute or on the in- itiative of Powers strangers to the
XXXVlii THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
flit, ont exclusivement le carac- tere de conseil et n'ont jamais force obligatoire.
ARTICLE 7
L'acceptation de la mediation ne peut avoir pour effet, sauf con- vention contraire, d'interrompre, de retarder ou d'entraver la mobilisation et autres mesures preparatoires a la guerre.
Si elle intervient apres 1'ouver- ture des hostilites, elle -n'inter- rompt pas, sauf convention con- traire, les operations militaires en cours.
ARTICLE 8
Les Puissances signataires sont d'accord pour recommander Tap- plication, dans les circonstances qui le permettent, d'une media- tion speciale sous la forme sui- vante :
En cas de differend grave com- promettant la paix, les fitats en conflit choisissent respectivement une Puissance a laquelle ils con- fient la mission d'entrer en rap- port direct avec la Puissance choisie d'autre part, a 1'effet de prevenir la rupture des relations pacifiques.
Pendant la duree de ce mandat dont le terme, sauf stipulation contraire, ne peut exceder trente jours, les £tats en litige cessent tout rapport direct au sujet du conflit, lequel est considere comme defere exclusivement aux Puissances mediatrices. Celles-ci doivent appliquer tous leurs efforts a regler le differend.
En cas de rupture effective des relations pacifiques, ces Puis- sances demeurent chargees de la
1907
flit, ont exclusivement le carac- tere de conseil et n'ont jamais force obligatoire.
ARTICLE 7
L'acceptation de la mediation ne peut avoir pour effet, sauf con- vention contraire, d'interrompre, de retarder ou d'entraver la mobilisation et autres mesures preparatoires a la guerre.
Si elle intervient apres 1'ouver- ture des hostilites, elle n'inter- rompt pas, sauf convention con- traire, les operations militaires en cours.
ARTICLE 8
Les Puissances contractantes sont d'accord pour recommander 1'application, dans les circon- stances qui le permettent, d'une mediation speciale sous la forme suivante :
En cas de differend grave com- promettant la paix, les £tats en conflit choisissent respectivement une Puissance a laquelle ils con- fient la mission d'entrer en rap- port direct avec la Puissance choisie d'autre part, a 1'effet de prevenir la rupture des relations pacifiques.
Pendant la duree de ce mandat dont le terme, sauf stipulation contraire, ne peut exceder trente jours, les fitats en litige cessent tout rapport direct au sujet du conflit, lequel est considere comme defere exclusivement aux Puissances mediatrices. Celles-ci doivent appliquer tous leurs efforts a regler le differend.
En cas de rupture effective des relations pacifiques, ces Puis- sances demeurent chargees de la
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
XXXIX
1899
dispute, have exclusively the character of advice and never have binding force.
ARTICLE 7
The acceptance of mediation can not, unless there be an agree- ment 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 mil- itary operations in progress, un- less there be an agreement to the contrary.
ARTICLE 8
The signatory Powers are agreed in recommending the ap- plication, when circumstances allow, of 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 other- wise stipulated, can not exceed thirty days, the States in conflict cease from all direct communica- tion 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
1907
dispute have exclusively the char- acter of advice, and never have binding force.
ARTICLE 7
The acceptance of mediation can not, unless there be an agree- ment to the contrary, have the effect of interrupting, delaying, or hindering mobilization or other measures of preparation for war.
If it takes place after the com- mencement of hostilities, the mili- tary operations in progress are not interrupted in the absence of an agreement to the contrary.
ARTICLE 8
The contracting Powers are agreed in recommending the ap- plication, when circumstances al- low, of special mediation in the following form:
In case of a serious difference endangering peace, the States at variance choose respectively a Power, to which 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 other- wise stipulated, can not exceed thirty days, the States in dispute cease from all direct communica- tion on the subject of the dispute, which is regarded as referred ex- clusively to the mediating Powers, which 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 tak-
xl
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
mission commune de profiler de mission commune de profiler de
toute occasion pour retablir la toule occasion pour retablir la paix. paix.
TITRE III. — DES COMMISSIONS INTERNATIONALES D'ENQUETE
ARTICLE 9
Dans les litiges d'ordre inter- national n'engageant ni 1'hon- neur ni des interets essentiels et provenant d'une divergence depreciation sur des points de fait, les Puissances signataires jugent utile que les Parties qui n'auraient pu se mettre d'accord par les voies diplomatiques in- stituent, en tant que les cir- constances le permettront, une Commission internationale d'en- quete chargee de f aciliter la solu- tion de ces litiges en eclaircis- sant, par un examen impartial et consciencieux, les questions de fait.
ARTICLE 10
Les Commissions internatio- nales d'enquete sont constitutes par convention speciale entre les Parties en litige.
La convention d'enquete pre- cise les faits a examiner et 1'eten- due des pouvoirs des Commis- saires.
Elle regie la procedure.
L'enquete a lieu contradictoire- ment.1
La forme et les delais a ob- server, en tant qu'ils ne sont pas fixes par la Convention d'en- quete, sont determines par la Commission elle-meme.
TITRE III. — DES COMMISSIONS INTERNATIONALES D'ENQUETE
ARTICLE 9
Dans les litiges d'ordre inter- national n'engageant ni 1'hon- neur ni des interets essentiels et provenant d'une divergence depreciation sur des points de fait, les Puissances contractantes jugent utile et desirable que les Parties qui n'auraient pu se mettre d'accord par les voies di- plomatiques instituent, en tant que les circonstances le permet- tront, une Commission interna- tionale d'enquete chargee de faciliter la solution de ces litiges en eclaircissant, par un examen impartial et consciencieux, les questions de fait.
ARTICLE 10
Les Commissions Internatio- nales d'enquete sont constitutes par convention speciale entre les Parties en litige.
La convention d'enquete pre- cise les faits a examiner; elle determine le mode et le delai de •formation de la Commission et 1'etendue des pouvoirs des com- missaires.
Elle determine egalement, sfil y a lieu, le siege de la Commis- sion et la faculte de se deplacer, la langue dont la Commission fera usage et celles dont Vemploi sera autorise devant ellet ainsi que la date a laquelle chaque
*See footnote on opposite page.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
xH
1899
taking advantage of any oppor- tunity to restore peace.
1907
ing advantage of any opportunity to restore peace.
TITLE III. — ON INTERNATIONAL COMMISSIONS OF INQUIRY
ARTICLE 9
In differences of an inter- tional nature involving neither honor nor vital interests, and arising from a difference of opin- ion on points of fact, the signatory Powers recommend that the par- ties, 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 in- quiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation.
PART III. — INTERNATIONAL COM- MISSIONS OF INQUIRY
ARTICLE 9
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 and de- sirable that the parties who have not been able to come to an agree- ment by means of diplomacy, should, as far as circumstances allow, institute an international commission of inquiry, to facili- tate a solution of these disputes by elucidating the facts by means of an impartial and conscientious investigation.
ARTICLE 10
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 commis- sioners' powers.
It settles the procedure.
On the inquiry both sides must be heard.1
The form and the periods to be observed, if not stated in the inquiry convention, are decided by the commission itself.
ARTICLE 10
International commissions of inquiry are constituted by special agreement between the parties in dispute.
The inquiry convention defines the facts to be examined ; it deter- mines the mode and time in which the commission is to be formed and the extent of the powers of the commissioners.
It also determines, if there is need, where the commission is to sit, and whether it may remove to another place, the language the commission shall use and the lan- guages the use of which shall be authorised before it, as well as the
provision appears in Article 19 of the 1907 Convention.
xlii
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
ARTICLE 11
Les Commissions internatio- nales d'enquete sont formees, sauf stipulation contraire, de la ma-
1907
Partie devra deposer son expose des faits, et generalement toutes les conditions dont les Parties sont convenues.
Si les Parties jugent necessaire de nontmer des assesseurs, la convention d'enquete determine le mode de leur designation et I'etendue de leurs pouvoirs.
ARTICLE 11
Si la convention d'enquete n'a pas designe le siege de la Com- mission, celle-ci siegera a La Haye.
Le siege une fois fixe ne peut etre change par la Commission qu'avec I'assentiment des Parties.
Si la convention d'enquete n'a pas determine les langues a em- ployer, il en est decidt par la Commission.
ARTICLE 12
Sauf stipulation contraire, les Commissions d'enquete sont formees de la maniere deter-
niere determinee par Tarticle 32 minee par les Articles 45 et 57
de la presente Convention.
de la presente Convention.
ARTICLE 13
En cos de deces, de demission ou d'empechement, pour quelque cause que ce soitf de fun des com- missairesf ou eventuellement de I'un des assesseursf il est pourvu d son r emplacement selon le mode fixe pour sa nomination.
ARTICLE 14
Les Parties ont le droit de nommer aupres de la Commission
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
xliii
1899
ARTICLE 11
The international commissions of inquiry are formed, unless otherwise stipulated, in the man- ner fixed by Article 32 of the present convention.
1907
date on which each party must deposit its statement of facts, andf generally speaking, all the condi- tions upon which the parties have agreed.
If the parties consider it neces- sary to appoint assessors, the convention of inquiry shall deter- mine the mode of their selection and the extent of their powers.
ARTICLE 11
// the inquiry convention has not determined where the com- mission is to sitt it will sit at The Hague.
The place of meeting, once fixed, can not be altered by the commission except with the assent of the parties.
If the inquiry convention has not determined what languages are to be employed, the question shall be decided by the commission.
ARTICLE 12
Unless an undertaking is made to the contrary, commissions of inquiry shall be formed in the manner determined by Articles 45 and 57 of the present Conven- tion.
ARTICLE 13
Should one of the commission- ers or one of the assessors, should there be any, either die, or resign, or be unable for any reason what- ever to discharge his functions, the same procedure is followed for filling the vacancy as was followed for appointing him.
ARTICLE 14
The parties are entitled to ap- point special agents to attend the
xliv THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
d'enquete des agents speciaux avec la mission de Les representer et de servir d' intermediates entre Elles et la Commission.
Elles sontt en outre, autorisees a charger des conseils ou avocats nommes par Elles, d' ex poser et de soutenir Leurs interets devant la Commission.
ARTICLE 15
Le Bureau International de la Cour permanente d'arbitrage sert de greffe aux Commissions qui siegent a La Haye, et mettra ses locaux et son organisation a la disposition des Puissances con- tractantes pour le fonctionne- ment de la Commission d'en- quete.
ARTICLE 16
Si la Commission siege ailleurs qu'a La Haye, elle nomme un Secretaire-General dont le bureau lui sert de greffe.
Le greffe est charge, sous I'au- torite du President, de V organisa- tion materielle des seances de la Commission, de la redaction des proces-verbaux et, pendant le temps de I'enquete, de la garde des archives qui seront ensuite verse es au Bureau International de La Haye.
ARTICLE 17
En vue de faciliter Vinstitu- tion et le fonctionnement des Commissions d'enquete, les Puissances contractantes recom- mandent les regies suivantes qui seront applicables d, la procedure d'enquete en tant que les Parties n'adopteront pas d'autres regies.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
1899 1907
commission of inquiry, •whose duty it is to represent them and to act as intermediaries between them and the commission.
They are further authorized to engage counsel or advocates, ap- pointed by themselves, to state their case and uphold their inter- ests before the commission.
ARTICLE 15
The International Bureau of the Permanent Court of Arbitra- tion acts as registry for the com- missions which sit at The Hague, and shall place its offices and staff at the disposal of the contracting Powers for the use of the commis- sion of inquiry.
ARTICLE 16
// the commission meets else- where than at The Hague, it ap- points a secretary general, 'whose office serves as registry.
It is the function of the registry, under the control of the presi- dent, to make the necessary arrangements for the sittings of the commission, the preparation of the minutes, and, 'while the inquiry lasts, for the charge of the archives, which shall subse- quently be transferred to the In- ternational Bureau at The Hague.
ARTICLE 17
In order to facilitate the con- stitution and working of commis- sions of inquiry, the contracting Powers recommend the following rules, which shall be applicable to the inquiry procedure in so far as the parties do not adopt other rides.
Xlvi THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
ARTICLE 18
La Commission reglera les de- tails de la procedure non prevus dans la convention speciale d'en- quete ou dans la presente Con- vention, et procedera d toutes les formalites que comporte I'admi- nistration des preuves.
ARTICLE 19
L'enquete a lieu contradictoire- ment.1
Aux dates prevues, chaque Partie communique a la Commis- sion et a I'autre Partie les exposes des faits, s'il y a lieu, et, dans tous les cos, les actes, pieces et docu- ments qu'Elle juge utiles a la decouverte de la verite, ainsi que la lisle des temoins et des experts qu'elle desire faire entendre.
ARTICLE 20
La Commission a la faculte, avec rassentiment des Parties, de se transporter momentanement sur les lieux ou elle juge utile de recourir a ce moyen d'informa- tion ou d°y deleguer un ou plu- sieurs de ses membres. L'autori- sation de l'£tat sur le territoire duquel il doit etre procede d cette information devra etre obtenue.
ARTICLE 21
Toutes constatations materi- elles, et toutes visites des lieuv doivent etre faites en presence des agents et conseils des Parties ou eux dument appeles.
ARTICLE 22
La Commission a le droit de solliciter de I'une ou I'autre
1See footnote on opposite page.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES xlvii
1899 1907
ARTICLE 18
The commission shall settle the details of the procedure not cov- ered by the special inquiry con- vention or the present Conven- tion, and shall arrange all the for- malities required for dealing with the evidence.
ARTICLE 19
On the inquiry both sides must be heard.1
At the dates fixed, each party communicates to the commis- sion and to the other party the statements of facts, if any, and, in all cases, the instruments, pa- pers, and documents which it con- siders useful for ascertaining the truth, as well as the list of wit- nesses and experts whose evidence it wishes to be heard.
ARTICLE 20
The commission is entitled, with the assent of the Powers, to move temporarily to any place where it considers it may be useful to have recourse to this means of inquiry or to send one or more of its members. Permission must be obtained from the State on whose territory it is proposed to hold the inquiry.
ARTICLE 21
Every investigation, and every examination of a locality, must be made in the presence of the agents and counsel of the parties or after they have been duly summoned.
ARTICLE 22
The commission is entitled to ask from either party for such ex-
*See Article 10 of the 1899 Convention.
xlviii
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
ARTICLE 12
Les Puissances en litige s'en- gagent a fournir a la Commission Internationale d'enquete, dans la plus large mesure qu 'Elles juge- ront possible, tous les moyens et toutes les facilites necessaires pour la connaissance complete et 1'appreciation exacte des faits en question.
1907
Partie telles explications ou in- formations qu'elle juge utiles.
ARTICLE 23
Les Parties s'engagent a four- nir a la Commission d'enquete, dans la plus large mesure qu'Elles jugeront possible, tous les moyens et toutes les facilites necessaires pour la connaissance complete et 1'appreciation exacte des faits en question.
Elles s'engagent a user des moyens dont Elles disposent d'apres leur legislation interieuref pour assurer la comparution des temoins ou des experts se trou- vant sur leur territoire et cites devant la Commission.
Si ceux-ci ne peuvcnt com- paraitre devant la Commission, Elles feront proceder a leur audi- tion devant leurs autorites com- petentes.
ARTICLE 24
Pour toutes les notifications que la Commission aurait a faire sur le territoire d'une tierce Puis- sance contractante, la Commis- sion s'adressera directement au Gouvernement de cette Puis- sance. II en sera de meme s'il s*agit de faire proceder sur place d I'etablissement de tous moyens de preuve.
Les requetes adressees d cet effet seront executees suivant les moyens dont la Puissance requise dispose d'apres sa legislation in- terieure. Elles ne peuvent etre refusees que si cette Puissance les juge de nature a porter atteinte £ Sa souverainete ou d Sa stcuritt.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
xlix
1899
ARTICLE, 12
The Powers in dispute engage to supply the international com- mission of inquiry, as fully as they may think possible, with all means and facilities necessary to enable it to be completely ac- quainted with and to accurately understand the facts in question.
1907
planations and information as it considers necessary.
ARTICLE 23
The parties undertake to sup- ply the commission of inquiry, as fully as they may think possible, with all means and facilities neces- sary to enable it to become com- pletely acquainted with, and to accurately understand, the facts in question.
They undertake to make use of the means at their disposal, under their municipal law, to insure the appearance of the witnesses or ex- perts who are in their territory and have been summoned before the commission.
If the witnesses or experts are unable to appear before the coin- mission, the parties will arrange for their evidence to be taken be- fore the qualified officials of their own country.
ARTICLE 24
For all notices to be served by the commission in the territory of a third contracting Power, the commission shall apply direct to the Government of the said Pow- er. The same rule applies in the case of steps being taken on the spot to procure evidence.
The requests for this purpose are to be executed so far as the means at the disposal of the Power applied to under its munici- pal law allow. They can not be rejected unless the Power in question considers they are cal- culated to impair its sovereign rights or its safety.
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
La Commission aura aussi toujours la facultf de recourir a Finterme'diaire de la Puissance sur le territoire de laquelle elle z son siege.
ARTICLE 25
Les temoins et les experts sont appeles a la requete des Parties ou df office par la Commission, et, dans tous les cos, par I'inter- mediaire du Gouvernement de l'£tat sur le territoire duquel Us se trouvent.
Les temoins sont entendus, successivement et separement, en presence des agents et des con- seils et dans un ordre a fixer par la Commission.
ARTICLE 26
L'interrogatoire des temoins est conduit par le President.
Les membres de la Commis- sion peuvent neanmoins poser a chaque temoin les questions qu'ils croient convenables pour eclair- cir ou completer sa deposition, ou pour se renseigner sur tout ce qui concerne le temoin dans les limites necessaires a la manifesta- tion de la verite.
Les agents et les conseils des Parties ne peuvent interrompre le temoin dans sa deposition, ni lui faire aucune interpellation directe, mais peuvent demander au President de poser au temoin telles questions complementaires qu'ils jugent utiles.
ARTICLE 27
Le temoin doit deposer sans qufil lui soit permis de lire aucun projet ecrit. Toutefois, il peut etre autorise" par le President a s'aider de notes ou documents si
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES 11
1899 1907
The commission will equally be always entitled to act through the Power on whose territory it sits.
ARTICLE 25
The witnesses and experts are summoned on the request of the parties or by the commission of its own motion, and, in every case, through the Government of the State in whose territory they are.
The witnesses are heard in suc- cession and separately, in the presence of the agents and coun- sel, and in the order fixed by the commission.
ARTICLE 26
The examination of witnesses is conducted by the president.
The members of the commis- sion may however put to each witness questions 'which they consider likely to throw light on and complete his evidence, or get information on any point con- cerning the witness within the limits of what is necessary in order to get at the truth.
The agents and counsel of the parties may not interrupt the wit- ness when he is making his state- ment, nor put any direct question to him, but they may ask the president to put such additional questions to the witness as they think expedient.
ARTICLE 27
The witness must give his evi- dence without being allowed to read any written draft. He may, however, be permitted by the president to consult notes or
Hi THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
la nature des faits rapportes en necessite I'emploi.
ARTICLE 28
Proces-verbal de la deposition du temoin est dresse stance tenante et lecture en est donnee au temoin. Le temoin peut y faire tels changements et addi- tions que bon lui semble et qui seront consignes a la suite de sa deposition.
Lecture faite au temoin de I' ensemble de sa depositiont le te- moin est requis de signer.
ARTICLE 29
Les agents sont autorises, au cours ou a la fin de I'enquete, a presenter par ecrit a la Commis- sion et a I'autre Partie tels diresf requisitions ou resumes de fait, qu'ils jugent utiles a la decou- verte de la verite.
ARTICLE 30
Les deliberations de la Com- mission ont lieu a huis clos et restent secretes.
Toute decision est prise a la majorite des membres de la Commission.
Le refus d'un membre de prendre part au vote doit etre constate dans le proces-verbal.
ARTICLE 31
Les seances de la Commission ne sont publiques et les proces- verbaux et documents de I'en- quete ne sont rendus publics qu'en vertu d'une decision de la Commission, prise avec I'assen- timent des Parties.
PACIFIC SETTLEMENT OF INTERNATIONA!* DISPUTES llil
1899 1907
documents if the nature of the facts referred to necessitates their employment.
ARTICLE 28
A minute of the evidence of the witness is drawn up forthwith and read to the 'witness. The latter may make such alterations and additions as he thinks necessary, which will be recorded at the end of his statement.
When the 'whole of his state- ment has been read to the witness, he is asked to sign it.
ARTICLE 29
The agents are authorized, in the course of or at the close of the inquiry, to present in 'writing to the commission and to the other party such statements, requisitions, or summaries of the facts as they consider useful for ascertaining the truth.
ARTICLE 30
The commission considers its decisions in private and the pro- ceedings are secret.
All questions are decided by a majority of the members of the commission.
If a member declines to vote, the fact must be recorded in the minutes.
ARTICLE 31
The sittings of the commission are not public, nor the minutes and documents connected •with the inquiry published except in virtue of a decision of the com- mission taken 'with the consent of the parties.
liv
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
ARTICLE 13
La Commission Internationale d'enquete presente aux Puis- sances en litige son rapport signe par tous les membres de la Com- mission.
ARTICLE 14
Le rapport de la Commission Internationale d'enquete, limite a la constatation des faits, n'a nulle- ment le caractere d'une Sentence arbitrale. II laisse aux Puis- sances en litige une entiere liberte pour la suite a donner a cette constatation.
1907 ARTICLE 32
Les Parties ayant presente tous les eclaircissements et preuves, tous les temoins ayant ete enten- dus, le President prononce la eld- tare de I'enquete et la Commis- sion Jajourne pour deliberer et rediger son rapport.
ARTICLE 33
Le rapport est signe par tous les membres de la Commission.
Si un des membres refuse de signer, mention en est faite; le rapport reste neanmoins valable.
ARTICLE 34
Le rapport de la Commission est lu en seance publiquef les agents et les conseils des Parties presents ou dument appeles.
Un exemplaire du rapport est rcmis a chaque Partie.
ARTICLE 35
Le rapport de la Commission, limite a la constatation des faits, n'a nullement le caractere d'une sentence arbitrale. II laisse aux Parties une entiere liberte pour la suite a donner a cette consta- tation.
ARTICLE 36
Chaque Partie supporte ses propres frais et une part egale des frais de la Commission.
TITRE IV. — DE L' ARBITRAGE IN- TITRE IV. — DE L' ARBITRAGE IN-
TERNATIONAL
CHAPITRE I. — De la Justice arbitrale
ARTICLE 15 L'arbitrage international a pour
TERNATIONAL
CHAPITRE I. — De la Justice arbitrale
ARTICLE 37 L'arbitrage international a pour
objet le reglament de litiges entre objet le reglement de litiges entre
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Iv
1899
ARTICLE 13
The international commission of inquiry communicates its re- port to the conflicting Powers, signed by all the members of the commission.
ARTICLE 14
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 15
International arbitration has for its object the settlement of
1907 ARTICLE 32
After the parties have pre- sented all the*, explanations and evidence, and the witnesses have all been heard, the president de- clares the inquiry terminated, and the commission adjourns to de- liberate and to draw up its re- port.
ARTICLE 33
The report is signed by all the members of the commission.
// one of the members refuses to sign, the fact is mentioned; but the validity of the report is not affected.
ARTICLE 34
The report of the commission is read at a public sitting, the agents and counsel of the parties being present or duly summoned.
A copy of the report is given to each party.
ARTICLE 35
The report of the commission is limited to a statement of facts, and has in no way the character of an award. It leaves to the parties entire freedom as to the effect to be given to the state- ment.
ARTICLE 36
Each party pays its own ex- penses and an equal share of the expenses incurred by the commis- sion.
PART IV. — INTERNATIONAL ARBITRATION
CHAPTER I. — The System of Arbi- tration
ARTICLE 37
International arbitration has for its object the settlement of dis-
Ivi
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
les £tats par des juges de leur choix et sur la base du respect du droit.
ARTICLE 16
Dans les questions d'ordre juri- dique, et en premier lieu dans les questions ^'interpretation ou d'application des Conventions in- ternationales, 1'arbitrage est re- connu par les Puissances sig- nataires comme le moyen le plus efficace et en meme temps le plus equitable de regler les litiges qui n'ont pas etc resolus par les voies diplomatiques.
ARTICLE 17
La Convention d'arbitrage est conclue pour des contestations deja nees ou pour des contesta- tions eventuelles.
Elle peut concerner tout litige ou seulement les litiges d'une categoric determinee.
ARTICLE 18
La Convention d'arbitrage im- plique 1'engagement de se sou- mettre de bonne foi a la Sentence arbitrate.2
1907
les fitats par des juges de leur choix et sur la base du respect du droit.
Le recours d 1'arbitrage im- plique Fengagement de se sou- mettre de bonne foi a la sentence.1
ARTICLE 38
Dans les questions d'ordre juri- dique, et en premier lieu, dans les questions d'interpretation pu d'application des Conventions in- ternationales, I'arbitrage est re- connu par les Puissances contrac- tantes comme le moyen le plus efficace et en meme temps le plus equitable de regler les litiges qui n'ont pas ete resolus par les voies diplomatiques.
En consequence, il serait de- sirable que, dans les litiges sur les questions susmentionnees, les Puissances contractantes eussent, le cos echeant, recours d I'arbi- trage, en tant que les circon- stances le permettraient.
ARTICLE 39
La Convention d'arbitrage est conclue pour des contestations deja nees ou pour des contesta- tions eventuelles.
Elle peut concerner tout litige ou seulement les litiges d'une categoric determinee.
1See footnote 1, opposite page. 2See footnote 4, opposite page.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ivii
1899
differences between States by judges of their own choice, and on the basis of respect for law.
ARTICLE 16*
In questions of a legal nature, and especially in the interpreta- tion or application of interna- tional conventions, arbitration is recognized by the signatory Pow- ers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.
1907
putes between States by judges of their own choice and on the basis of respect for law.
Recourse to arbitration implies an engagement to submit in good faith to the award.1
ARTICLE 382
In questions of a legal nature, and especially in the interpreta- tion or application of interna- tional conventions, arbitration is recognized by the contracting Powers as the most effective, and, at the same time, the most equi- table means of settling disputes which diplomacy has failed to settle.
Consequently, it would be de- sirable that, in disputes about the above-mentioned questions, the contracting Powers should, if the case arose, have recourse to arbi- tration, in so far as circumstances permit.
ARTICLE 172
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 cate- gory.
ARTICLE 18
The arbitration convention im- plies the engagement to submit loyally to the award.4
ARTICLE 39*
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 cate- gory.8
'Cf. Articles 18 and 31 of the 1899 Convention.
2 See the reservations of Roumania respecting Articles 16. 17 and 19 of the 1899 Convention and the corresponding articles of the 1907 Convention, post, pp. ciii, cvi.
8Chile also made a reservation respecting Article 39.
«Cf. Article 37, paragraph 2, of the 1907 Convention.
Iviii
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 ARTICLE 19
Independamment des Traites generaux ou particuliers qui sti- pulent actuellement 1'obligation du recours a 1'arbitrage pour les Puissances signataires, ces Puis- sances se reservent de conclure, soit avant la ratification du present Acte, soit posterieure- ment, des accords nouveaux, generaux ou particuliers, en vue d'etendre 1'arbitrage obligatoire a tous les cas qu'Elles jugeront possible de lui soumettre.
CHAPITRE II. — De la Cour perma-
nente d* arbitrage
ARTICLE 20
Dans le but de faciliter le re- cours immediat a 1'arbitrage pour les differends internationaux qui n'ont pu etre regies par la voie diplomatique, les Puissances sig- nataires s'engagent a organiser une Cour permanente d'arbitrage, accessible en tout temps et fonc- tionnant, sauf stipulation con- traire des Parties, conformement aux Regies de procedure in- serees dans la presente Conven- tion.
ARTICLE 21
La Cour permanente sera com- petente pour tous les cas d'arbi- trage, a moins qu'il n'y ait entente entre les Parties pour Tetablisse- ment d'une juridiction speciale.
ARTICLE 22
Un Bureau international eta-
1907
ARTICLE 40
Independamment des Traites generaux: ou particuliers qui stipulent actuellement Tobliga- tion du recours a 1'arbitrage pour les Puissances contractantes, ces Puissances se reservent de con- clure des accords nouveaux, ge- neraux ou particuliers, en vue d'etendre Tarbitrage obligatoire a tous les cas qu'Elles jugeront possible de lui soumettre.
CHAPITRE II. — De la Cour perma- nente d* arbitrage ARTICLE 41
Dans le but de faciliter le re- cours immediat a Tarbitrage pour les differends internationaux qui n'ont pu etre regies par la voie diplomatique, les Puissances con- tractantes s'engagent a main- tenir, telle qu'elle a cte ctablie par la Premiere Conference de la Paix, la Cour permanente d'arbi- trage, accessible en tout temps et fonctionnant, sauf stipulation contraire des Parties, conforme- ment aux Regies de procedure in- serees dans la presente Conven- tion.
ARTICLE 42
La Cour permanente est com- petente pour tous les cas d'arbi- trage, a moins qu'il n'y ait entente entre les Parties pour 1'etablisse- ment d'une juridiction speciale.
ARTICLE 43
La Cour permanente a son sttge a La Haye.1
Un Bureau International sert
1See footnote 2, opposite page.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
lix
1899 ARTICLE 19l
Independently of general or private treaties expressly stipu- lating recourse to arbitration as obligatory on the signatory Pow- ers, these Powers reserve to them- selves the right of concluding, either before the ratification of the present Act or later, new agreements, general or private, with a view to extending obliga- tory arbitration to all cases which they may consider it possible to submit to it.
CHAPTER II. — On the Permanent
Court of Arbitration
ARTICLE 20
With the object of facilitating an immediate recourse to arbitra- tion for international differences, which it has not been possible to settle by diplomacy, the signa- tory Powers undertake to organ- ize a Permanent Court of Arbi- tration, accessible at all times and operating, unless otherwise stipulated by the parties, in ac- cordance with the rules of pro- cedure inserted in the present Convention.
ARTICLE 21
The Permanent Court shall be competent for all arbitration cases, unless the parties agree to institute a special tribunal.
1907
ARTICLE 401
Independently of general or pri- vate treaties expressly stipulat- ing recourse to arbitration as obli- gatory on the contracting Powers, the said Powers reserve to them- selves the right of concluding new agreements, general or particu- lar, with a view to extending compulsory arbitration to all cases which they may consider it possible to submit to it.
CHAPTER II. — The Permanent
Court of Arbitration
ARTICLE 41
With the object of facilitating an immediate recourse to arbitra- tion for international differences, which it has not been possible to settle by diplomacy, the contract- ing Powers undertake to main- tain the Permanent Court of Ar- bitration, as established by the First Peace Conference, accessible at all times, and operating, unless otherwise stipulated by the par- ties, in accordance with the rules of procedure inserted in the pres- ent Convention.
ARTICLE 42
The Permanent Court is compe- tent for all arbitration cases, un- less the parties agree to institute a special tribunal.
ARTICLE 22
An International Bureau, estab-
ARTICLE 43
The Permanent Court sits at The Hague.2
An International Bureau serves
1See footnote 2, ante, p. Ivii.
2Cf. Article 25, paragraph 1, of the 1899 Convention.
Ix
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
bli a La Haye sert de greffe a la Cour.
Ce Bureau est Pintermediaire des communications relatives aux reunions de celle-ci.
II a la garde des archives et la gestion de toutes les affaires ad- ministratives.
Les Puissances signataires s'en- gagent a communiquer au Bureau international de La Haye, une copie certifiee conforme de toute stipulation d'arbitrage inter- venue entre elles et de toute sentence arbitrale les concernant et rendue par des juridictions speciales.
Elles s'engagent a communi- quer de meme au Bureau, les lois, reglements et documents constatant eventuellement Pexe- cution des sentences rendues par la Cour.
ARTICLE 23
Chaque Puissance signataire designera, dans les trois mois qui suivront la ratification par elle du presente Acte, quatre personnes au plus, d'une competence re- connue dans les questions de droit international, jouissant de la plus haute consideration morale et disposees a accepter les fonctions d'arbitres.
Les personnes ainsi designees seront inscrites, au titre de mem- bres de la Cour, sur une liste qui sera notifiee a toutes les Puis- sances signataires par les soins du Bureau.
Toute modification a la liste des Arbitres est portee, par les soins du Bureau, a la connaissance des Puissances signataires.
Deux ou plusieurs Puissances peuvent s'entendre pour la desig-
1907
de greffe a la Cour; U est 1'in- termediaire des communications relatives aux reunions de celle-ci ; il a la garde des archives et la gestion de toutes les affaires ad- ministratives.
Les Puissances contractantes s'engagent a communiquer au Bureau, aussitot que possible, une copie certifiee conforme de toute stipulation d'arbitrage intervenue entre Elles et de toute sentence arbitrale Les concernant et ren- due par des juridictions speciales.
Elles s'engagent a communi- quer de meme au Bureau les lois, reglements et documents consta- tant eventuellement Texecution des sentences rendues par la Cour.
ARTICLE 44
Chaque Puissance contrac- tante designe quatre personnes au plus, d'une competence recon- nue dans les questions de droit international, jouissant de la plus haute consideration morale et dis- posees a accepter les fonctions d'arbitres.
Les personnes ainsi designees sont inscrites, au titre de Mem- bres de la Cour, sur une liste qui sera notifiee a toutes les Puis- sances contractantes par les soins du Bureau.
Toute modification a la liste des arbitres est portee, par les soins du Bureau, a la connaissance des Puissances contractantes.
Deux ou plusieurs Puissances peuvent s'entendre pour la de-
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixi
1899
lished 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 under- take to communicate to the Inter- national Bureau at The Hague a duly certified copy of any con- ditions of arbitration arrived at between them, and of any award concerning them delivered by special tribunals.
They undertake also to commu- nicate to the Bureau the laws, regulations, and documents eventually showing the execution of the awards given by the Court.
ARTICLE 23
Within the three months fol- lowing its ratification of the pres- ent Act, each signatory Power shall select four persons at the most, of known competency in qr jstions of international law, ci 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
1907
as registry for the Court. It is the channel for communications relative to the meetings of the Court; it has charge of the ar- chives and conducts all the ad- ministrative business.
The contracting Powers under- take to communicate to the Bu- reau, as soon as possible, a certi- fied copy of any conditions of ar- bitration arrived at between them and of any award concerning them delivered by a special tri- bunal.
They likewise undertake to communicate to the Bureau the laws, regulations, and documents eventually showing the execution of the awards given by the Court.
ARTICLE 44
Each contracting Power selects four persons at the most, of known competency in questions of international law, of the high- est moral reputation, and dis- posed to accept the duties of ar- bitrator.
The persons thus selected are inscribed, as members of the Court, in a list which shall be no- tified to all the contracting Pow- ers by the Bureau.
Any alteration in the list of arbitrators is brought by the Bureau to the knowledge of the contracting Powers.
Two or more Powers may agree on the selection in common of one
Ixii
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
nation en commun d'un ou de plusieurs membres.
La meme personne peut etre designee par des Puissances dif- ferentes.
Les membres de la Cour sont nommes pour un terme de six ans. Leur mandat peut etre renouvele.
En cas de deces ou de retraite d'un membre de la Cour, il est pourvu a son remplacement selon le mode fixe pour sa nomination.
1907
signation en commun d'un ou de plusieurs Membres.
La meme personne peut etre designee par des Puissances dif- ferentes.
Les Membres de la Cour sont nommes pour un terme de six ans. Leur mandat peut etre renouvele.
En cas de deces ou de retraite d'un Membre de la Cour, il est pourvu a son remplacement selon le mode fixe pour sa nomina- tion, et pour une nouvelle periode de six ans.
ARTICLE 24
Lorsque les Puissances signa- taires veulent s'adresser a la Cour permanente pour le reglement d'un differend survenu entre elles, le choix des Arbitres appeles a former le Tribunal competent pour statuer sur ce differend, doit etre fait dans la liste gene- rale des Membres de la Cour.
A defaut de constitution du Tribunal arbitral par 1'accord im- mediat des Parties, il est precede de la maniere suivante:
Chaque Partie nomme deux Arbitres et ceux-ci choisissent en- semble un Surarbitre.
En cas de partage des voix, le choix de Surarbitre est confie a une Puissance tierce, designee de commun accord par les Parties.
Si 1'accord ne s'etablit pas a ce sujet, chaque Partie designe une Puissance differente et le choix
ARTICLE 45
Lorsque les Puissances contrac- tantes veulent s'adresser a la Cour permanente pour le regle- ment d'un differend survenu en- tre Elles, le choix des arbitres appeles a former le Tribunal competent pour statuer sur ce differend, doit etre fait dans la liste generate des Membres de la Cour.
A defaut de constitution du Tribunal arbitral par 1'accord x'es Parties, il est precede de ia maniere suivante:
Chaque Partie nomme deux arbitres, dont un seulement peut etre son national ou choisi parmi ceux qui ont ete designes par Elle comme Membres de la Cour permanente. Ces arbitres choi- sissent ensemble un surarbitre.
En cas de partage des voix, le choix du surarbitre est confie a une Puissance tierce, designee de commun accord par les Parties.
Si 1'accord ne s'etablit pas a ce sujet, chaque Partie designe une Puissance differente et le choix
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixiii
1899 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 re- newed.
In case of the death or retire- ment of a member of the Court, his place shall be filled in accord- ance with the method of his appointment.
ARTICLE 24
When the signatory Powers de- sire to have recourse to the Per- manent Court for the settlement of a difference that has arisen be- tween 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 fol- lowing course shall be pursued :
Each party appoints two arbi- trators, 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 par- ties by common accord.
If an agreement is not arrived at on this subject, each party se- lects a different Power, and the
1907
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. These appointments are renew- able.
Should a member of the Court die or resign, the same procedure is followed for filling the vacancy as was followed for appointing him. In this case the appoint- ment is made for a fresh period of six years.
ARTICLE 45
When the contracting Powers wish to have recourse to the Per- manent Court for the settlement of a difference which has arisen between them, the arbitrators called upon to form the tribunal with jurisdiction 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 fol- lowing course shall be pursued :
Each party appoints two ar- bitrators, of whom one only can be its national or chosen from among the persons selected by it ais members of the Permanent Court. These arbitrators together choose an umpire.
If the votes are equally divided, the choice of the umpire is in- trusted to a third Power, selected by the parties by common accord.
If an agreement is not arrhed at on this subject each party se- lects a different Power, and the
Ixiv
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
du Surarbitre est fait de concert par les Puissances ainsi designees.
Le Tribunal etant ainsi com- pose, les Parties notifient au Bu- reau leur decision de s'adresser a la Cour et les noms des arbitres.
Le Tribunal arbitral se reunit a la date fixee par les Parties.
Les Membres de la Cour, dans Texercice de leurs fonctions et en dehors de leur Pays, jouissent des privileges et immunites diplo- matiques.
ARTICLE 25
Le Tribunal arbitral siege d'or- dinaire a La Haye.1
Le siege ne peut, sauf le cas de force ma j cure, etre change par le Tribunal que de Tassentiment des Parties.
1907
du surarbitre est fait de concert par les Puissances ainsi designees.
Si, dans un delai de deux mois, ces deux Puissances riont pu tomber d'accord, chacune d'Elles presente deux candidats pris sur la liste des Membres de la Cour permanente, en dehors des Membres designes par les Parties et n'etant les nationaux d'au- cune d'Elles. Le sort determine lequel des candidats ainsi prSsentes sera le surarbitre.
ARTICLE 46
Des que le Tribunal est com- pose, les Parties notifient au Bureau leur decision de s'ad- resser a la Cour, le texte de leur compromisf et les noms des arbitres.
Le Bureau communique sans delai a chaque arbitre le com- promis et les noms des autres Membres du Tribunal.
Le Tribunal se reunit a la date fixee par les Parties. Le Bureau pourvoit a son installation.
Les Membres du Tribunal, dans Texercice de leurs fonctions et en dehors de leur pays, jouis- sent des privileges et immunites diplomatiques.
ARTICLE 26 Le Bureau international de La
ARTICLE 47 Le Bureau est autorise
1See footnote on opposite page.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixv
1899
choice of the umpire is made in concert by the Powers thus se- lected.
The tribunal being thus com- posed, the parties notify to the Bureau their determination to have recourse to the Court and the names of the arbitrators.
The tribunal of arbitration as- sembles 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 immu- nities.
ARTICLE 25
The tribunal of arbitration has its ordinary seat at The Hague.1
Except in cases of necessity, the place of session can only be altered by the tribunal with the assent of the parties.
ARTICLE 26 The International Bureau at
1907
choice of the umpire is made in concert by the Powers thus se- lected.
If, within two months? time, these two Powers can not come to an agreement, each of them presents two candidates taken from the list of members of the Permanent Court, exclusive of the members selected by the par- ties and not being nationals of either of them. Drawing lots determines which of the candi- dates thus presented shall be umpire.
ARTICLE 46
As soon as the tribunal is com- posed, the parties notify to the Bureau their determination to have recourse to the Court, the text of their compromis, and the names of the arbitrators.
The Bureau communicates with- out delay to each arbitrator the compromis, and the names of the other members of the tribunal.
The tribunal assembles at the date fixed by the parties. The Bureau makes the necessary ar- rangements for the meeting.
The members of the tribunal, in the exercise of their duties and out of their own country, enjoy diplomatic privileges and immu- nities.
The
ARTICLE 47 Bureau is authorized to
Article 43, paragraph 1, of the 1907 Convention.
Ixvi
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
Haye est autorise a mettre ses locaux et son organisation a la disposition des Puissances signa- taires pour le fonctionnement de toute jundiction speciale d'arbi- trage.
La juridiction de la Cour per- manente peut etre etendue, dans les conditions prescrites par les Reglements, aux litiges existant entre des Puissances non signa- taires ou entre des Puissances signataires et des Puissances non signataires, si les Parties sont convenues de recourir a cette juri- diction.
ARTICLE 27
Les Puissances signataires con- siderent comme un devoir, dans le cas ou un conflit aigu menace- rait d'eclater entre deux ou plu- sieurs d'entre Elles, de rappeler a celles-ci que la Cour permanente leur est ouverte.
En consequence, Elles decla- rent que le fait de rappeler aux Parties en conflit les dispositions de la presente Convention, et le conseil donne, dans 1'interet su- perieur de la paix, de s'adresser a la Cour permanente, ne peuvent etre considered que comme actes de Bons Offices.
1907
mettre ses locaux et son organisa- tion a la disposition des Puis- sances contractantes pour le fonctionnement de toute juri- diction speciale d'arbitrage.
La juridiction de la Cour per- manente peut etre etendue, dans les conditions prescrites par les reglements, aux litiges existant entre des Puissances non con- tractantes ou entre des Puis- sances contractantes et des Puit>- sances non contractantes, si les Parties sont convenues de re- courir a cette juridiction.
ARTICLE 48
Les Puissances contractantes considerent comme un devoir, dans les cas ou un conflit aigu menacerait d'eclater entre deux ou plusieurs d'entre Elles, de rap- peler a celles-ci que la Cour per- manente leur est ouverte.
En consequence, Elles decla- rent que le fait de rappeler aux Parties en conflit les dispositions de la presente Convention, et le conseil donne, dans 1'interet su- perieur de la paix, de s'adresser a la Cour permanente, ne peuvent etre considered que comme actes de bons offices.
En cas de conflit entre deux Puissances, Vune d'Elles pourra toujours adresser au Bureau In- ternational une note contenant sa declaration qu'Elle serait dis- posee a soumettre le differend d un arbitrage.
Le Bureau devra porter aus- sitot la declaration a la connais- sance de I'autre Puissance.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixvii
1899
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 Perma- nent Court, may, within the con- ditions laid down in the regula- tions, be extended to disputes between non-signatory Powers, or between signatory Powers and non-signatory Powers, if the par- ties are agreed on recourse to this tribunal.
1907
place its offices and staff at the disposal of the contracting Pow- ers for the use of any special board of arbitration.
The jurisdiction of the Perma- nent Court may, within the con- ditions laid down in the regula- tions, be extended to disputes between non-contracting Powers or between contracting Powers and non-contracting Powers, if the parties are agreed on recourse to this tribunal.
ARTICLE 27
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 con- flicting 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 481
The contracting Powers con- sider it their duty, if a serious dispute threatens to break out between two or more of them, to remind these latter that the Per- manent Court is open to them.
Consequently, they declare that the fact of reminding the parties at variance of the provisions of the present Convention, and the advice given to them, in the high- est interests of peace, to have re- course to the Permanent Court, can only be regarded as friendly actions.
In case of dispute between two Powers, one of them can always address to the International Bu- reau a note containing a declara- tion that it would be ready to sub- mit the dispute to arbitration.
The Bureau must at once in- form the other Power of the dec- laration.
*See the reservation of the United States on the subject of this article, post, p. cvi.
Ixviii THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 ARTICLE 28
Un Conseil administratif per- manent, compose des represen- tants diplomatiques des Puis- sances signataires accredited a La Haye et du Ministre des Affaires Etrangeres des Pays-Bas qui remplira les fonctions de Presi- dent, sera constitue dans cette ville le plus tot possible apres la ratification du present Acte par neuf Puissances au moins.
Ce Conseil sera charge d'etab- lir et d'organiser le Bureau in- ternational, lequel demeurera sous sa direction et sous son controle.
II notifiera aux Puissances la constitution de la Cour et pour- voira a Installation de celle-ci.
II arretera son reglement d'ordre ainsi que tous autres reglements necessaires.
II decidera toutes les questions administratives qui pourraient surgir touchant le fonctionne- ment de la Cour.
II aura tout pouvoir quant a la nomination, la suspension ou la revocation des fonctionnaires et employes du Bureau.
II fixera les traitements et sa- laires et controlera la depense general e.
La presence de cinq membres dans les reunions dument con- voquees suffit pour permettre au Conseil de deliberer valable- ment. Les decisions sont prises a la majorite des voix.
Le Conseil communique sans delai aux Puissances signataires les reglements adoptes par lui. II leur adresse chaque annee un rapport sur les travaux de la Cour, sur le fonctionnement des
1907 ARTICLE 49
Le Conseil administratif per- manent, compose des Repre- sentants diplomatiques des Puis- sances contractantes accredited a La Haye et du Ministre des Affaires £trangeres des Pays-Bas, qui remplit les fonctions de President, a la direction et le controle du Bureau International.
Le Conseil arrete son regle- ment d'ordre ainsi que tous autres reglements necessaires.
II decide toutes les questions administratives qui pourraient surgir touchant le fonctionne- ment de la Cour.
II a tout pouvoir quant a la nomination, la suspension ou la revocation des fonctionnaires et employes du Bureau.
II fixe les traitements et sa- laires, et controle la depense ge- nerale.
La presence de neuf membres dans les reunions dument con- voquees suffit pour permettre au Conseil de deliberer valable- ment. Les decisions sont prises a la majorite des voix.
Le Conseil communique sans delai aux Puissances contrac- tantes les reglements adoptes par lui. II Leur presente chaque annee un rapport sur les travaux de la Cour, sur le fonctionnement
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixix
1899 ARTICLE 28
A Permanent Administrative Council, composed of the diplo- matic representatives of the sig- natory 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 organ- ization of the International Bu- reau, which will be under its di- rection 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 pro- cedure 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 em- ployes 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 dis- cussions 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 addresses to them an annual report on the labors of the Court, the working of the
1907 ARTICLE 49
The Permanent Administrative Council, composed of the diplo- matic representatives of the con- tracting Powers accredited to The Hague and of the Netherland Minister for Foreign Affairs, who acts as president, is charged with the direction and control of the International Bureau.
The Council settles its rules of procedure and all other necessary regulations.
It decides all questions of ad- ministration which may arise with regard to the operations of the Court.
It has entire control over the appointment, suspension, or dis- missal of the officials and em- ployes of the Bureau.
It fixes the payments and sala- ries, and controls the general ex- penditure.
At meetings duly summoned the presence of nine members is sufficient to render valid the dis- cussions of the Council. The de- cisions are taken by a majority of votes.
The Council communicates to the contracting Powers without delay the regulations adopted by it. It presents to them an an- nual report on the labors of the Court, the working of the admin-
Ixx
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
services administratifs et sur les depenses.
ARTICLE 29
Les f rais du Bureau seront sup- portes par les Puissances signa- taires dans la proportion etablie pour le Bureau international de 1'Union postale universelle.
CHAPITRE III. — De la Procedure arbitrate
ARTICLE 30
En vue de favoriser le deve- loppement de 1'arbitrage, les Puis- sances signataires ont arrete les regies suivantes qui seront appli- cables a la procedure arbitrate, en tant que les Parties ne sont pas convenues d'autres regies.
ARTICLE 31
Les Puissances qui recourent a 1'arbitrage signent un Acte spe- cial (compromis) dans lequel sont nettement determines 1'objet du litige ainsi que 1'etendue des pouvoirs des arbitres. Get Acte implique 1'engagement des Par- ties de se soumettre de bonne foi a la sentence arbitrate.1
1See footnote on opposite page.
1907
des services administratifs et sur les depenses. Le rapport con- tient egalement un resume du contenu essentiel des documents communiques au Bureau par les Puissances en vertu de I'article 43 alineas j et 4.
ARTICLE 50
Les frais du Bureau seront supportes par les Puissances con- tractantes dans la proportion etablie pour le Bureau interna- tional de TUnion postale uni- verselle.
Les frais a la charge des Puis- sances adherentes seront comptes a partir du jour oti leur adhesion produit ses effets.
CHAPITRE III. — De la Procedure arbitrate
ARTICLE 51
En vue de favoriser le deve- loppement de 1'arbitrage, les Puis- sances contractantes ont arrete les regies suivantes qui sont ap- plicables a la procedure arbitrate, en tant que les Parties ne sont pas convenues d'autres regies.
ARTICLE 52
Les Puissances qui recourent a 1'arbitrage signent un com- promis dans lequel sont deter- mines 1'objet du litige, le delai de nomination des arbitres, la •forme, Vordre et les delais dans lesquels la communication visee par I'article 63 devra etre faite, et le montant de la somme que chaque Partie aura a deposer d, litre d'avance pour les frais.
Le compromis determine egale-
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixxi
1899
administration, and the expendi- ture.
ARTICLE 29
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.
CHAPTER III. — On Arbitral Pro- cedure
ARTICLE 30
With a view to encourage the development of arbitration, the signatory Powers have agreed on the following rules which shall be applicable to arbitral proce- dure, unless other rules have been agreed on by the parties.
ARTICLE 31
The Powers who have recourse to arbitration sign a special act (compromis), in which the sub- ject 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.1
1907
istration, and the expenditure. The report likewise contains a resume of what is important in the documents communicated to the Bureau by the Powers in vir- tue of Article 43, paragraphs 3 and 4.
ARTICLE 50
The expenses of the Bureau shall be borne by the contracting Powers in the proportion fixed for the International Bureau of the Universal Postal Union.
The expenses to be charged to the adhering Powers shall be reck- oned from the date on which their adhesion comes into force.
CHAPTER III. — Arbitration Procedure
ARTICLE 51
With a view to encouraging the development of arbitration, the contracting Powers have agreed on the following rules, which are applicable to arbitration proce- dure, unless other rules have been agreed on by the parties.
ARTICLE 52
The Powers which have re- course to arbitration sign a com- promis, in which the subject of the dispute is clearly defined, the time allowed for appointing arbi- trators, the form, order, and time in which the communication re- ferred to in Article 63 must be made, and the amount of the sum which each party must deposit in advance to defray the expenses.
The compromis likewise de-
1Cf. Article 37, paragraph 2, of the 1907 Convention
Ixxii THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
mentf s'il y a lieu, le mode de nomination des arbitres, tous pouvoirs speciaux eventuels du Tribunal, son stige, la langue dont il fera usage et celles dont I'emploi sera autorise devant lui, et generalement toutes les con- ditions dont les Parties sont con- venues.
ARTICLE 53
La Cour permanente est com- petente pour I' etablissement du compromist si les Parties sont d'accord pour s'en remettre & elle.
Elle est egalemcnt competente, meme si la demande est faite seulement par I'une des Parties, apres qiiun accord par la voie diplomatique a etc vainement essay e, quand il sfagit:
i°. d'un differend rentrant dans un Traite df arbitrage general con- clu ou renouvete apres la mise en vigueur de cette Convention et qui prevoit pour chaque differend un compromis et n'exclut pour V etablissement de cc dernier ni explicitement ni implicitement la competence de la Cour. Toute- fois, le recours a la Cour n'a pas lieu si I'autre Partie declare qu'd son ams le differend n'appartient pas a la categoric des differends a soumettre a un arbitrage obli- gatoire, a moins que le Traite d'arbitrage ne confere au Tri- bunal arbitral le pouvoir de decider cette question prealable;
2°. d'un differend provenant de dettes contractuelles reclamees d une Puissance par une autre Puissance comme dues d ses nationaux, et pour la solution duquel I'offre d'arbitrage a etk
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES Ixxiii
1899 1907
fines, if there is occasion, the man- ner of appointing arbitrators, any special powers which may eventu- ally belong to the tribunal, where it shall meet, the language it shall use, and the languages the em- ployment of which shall be author- ised before it, and, generally speaking, all the conditions on which the parties are agreed.
ARTICLE 531
The Permanent Court is compe- tent to settle the compromis, if the parties are agreed to have re- course to it for the purpose.
It is similarly competent, even if the request is only made by one of the parties, when all attempts to reach an understanding through the diplomatic channel have failed, in the case of —
1. A dispute covered by a gen- eral treaty of arbitration con- cluded or renewed after the pres- ent Convention has come into force, and providing for a com- promis in all disputes and not either explicitly or implicitly ex- cluding the settlement of the compromis from the competence of the Court. Recourse can not, however, be had to the Court if the other party declares that in its opinion the dispute does not be- long to the category of disputes which can be submitted to compul- sory arbitration, unless the treaty of arbitration confers upon the ar- bitration tribunal the power of de- ciding this preliminary question.
2. A dispute arising from con- tract debts claimed from one Power by another Power as due to its nationals, and for the settle- ment of which the offer of arbi-
the reservations of this article, post, pp. cv. et seq.
Ixxiv
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
ARTICLE 32
Les fonctions arbitrates peu- vent etre conferees a un arbitre unique ou a plusieurs arbitres designes par les Parties a leur gre, ou choisis par Elles parmi les membfes de la Cour per- manente d'arbitrage etablie par le present Acte.
A defaut de constitution du Tribunal par 1'accord immediat des Parties, il est procede de la maniere suivante:
Chaque Partie nomme deux arbitres et ceux-ci choisissent en- semble un surarbitre.
En cas de partage des voix, le choix de surarbitre est confie a une Puissance tierce, designee de commun accord par les Parties.
Si 1'accord ne s'etablit pas a ce sujet, chaque Partie designe une Puissance differente et le choix du surarbitre est fait de concert par les Puissances ainsi de- signees.
1907
acceptee. Cette disposition n'est pas applicable si F acceptation a ete subordonnee a la condition que le compromis soit etabli selon un autre mode.
ARTICLE 54
Dans les cas prevus par I 'article precedent, le compromis sera etabli par une commission com- posee de cinq membres designes de la maniere prevue a I'article 45 alineas 3 a 6.
Le cinquieme mcmbre est de droit President de la commission.
ARTICLE 55
Les fonctions arbitrates peu- vent etre conferees a un arbitre unique ou a plusieurs arbitres designes par les Parties a leur gre, ou choisis par Elles parmi les Membres de la Cour per- manente d'arbitrage etablie par la presente Convention.
A defaut de constitution du Tribunal par 1'accord des Par- ties, il est procede de la maniere indiquee a I'article 45 alineas 3 ^ 6.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixxv
1899
ARTICLE 32
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 be- tween the parties, the following course is pursued:
Each party appoints two arbi- trators, 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.
1907
tration has been accepted. This arrangement is not applicable if acceptance is subject to the condi- tion that the compromis should be settled in some other way.
ARTICLE 541
In the cases contemplated in the preceding article, the com- promis shall be settled by a com- mission consisting of five mem- bers selected in the manner ar- ranged for in Article 45, para- graphs 3 to 6.
The fifth member is president of the commission ex officio.
ARTICLE 55
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 mem- bers of the Permanent Court of Arbitration established by the present Convention.
Failing the constitution of the tribunal by direct agreement be- tween the parties, the course re- ferred to in Article 45, paragraphs 3 to 6 is pursued.
1 Japan made reservation of Article 54
Ixxvi THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 ARTICLE 33
1907 ARTICLE 56
Lorsqu'un Souverain ou un Lorsqu'un Souverain ou un
Chef d'fitat est choisi pour ar- Chef d'fitat est choisi pour ar-
bitre, la procedure arbitrate est bitre, la procedure arbitrate est
reglee par Lui. reglee par Lui.
ARTICLE 34
Le surarbitre est de droit Pre- sident du Tribunal.
Lorsque le Tribunal ne com- prend pas de surarbitre, il nomme lui-meme son president.
ARTICLE 35
En cas de deces, de demission ou d'empechement, pour quelque cause que ce soit, de Tun des ar- bitres, il est pourvu a son rem- placement selon le mode fixe pour sa nomination.
ARTICLE 36
Le siege du Tribunal est designe par les Parties. A de- faut de cette designation, le Tribunal siege a La Haye.
Le siege ainsi fixe ne peut, sauf le cas de force ma j cure, etre change par le Tribunal que de 1'assentiment des Parties.
ARTICLE 57
Le surarbitre est de droit Pre- sident du Tribunal.
Lorsque le Tribunal ne com- prend pas de surarbitre, il nomme lui-meme son President.
ARTICLE 58
En cas d'etablissement du com- promis par une commission, telle qufelle est visec a I'article 54, et sauf stipulation contraire, la commission die meme formera le Tribunal d' arbitrage.
ARTICLE 59
En cas de deces, de demission ou d'empechement, pour quelque cause que ce soit, de Tun des arbitres, il est pourvu a son rem- placement selon le mode fixe pour sa nomination.
ARTICLE 60
A defaut de designation par les Parties, le Tribunal siege a La Haye.
le
Le Tribunal ne peut sitger sur territoire d'une tierce Puis- sance qu'avec I' assentiment de celle-ci.
Le siege une fois fixe ne peut etre change par le Tribunal qu'avec 1'assentiment des Parties.
ARTICLE 61 Si le compromis n'a pas deter-
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixxvii
1899 ARTICLE 33
When a sovereign or the chief of a State is chosen as arbitra- tor, the arbitral procedure is set- tled by him.
ARTICLE 34
The umpire is by right presi- dent of the tribunal.
When the tribunal does not include an umpire, it appoints its own president.
ARTICLE 35
In case of the death, retire- ment, or disability from any cause of one of the arbitrators, his place shall be filled in accordance with the method of his appoint- ment.
ARTICLE 36
The tribunal's place of session is selected by the parties. Fail- ing this selection the tribunal sits at The Hague.
The place thus fixed can not, except in case of necessity, be changed by the tribunal without the assent of the parties.
1907
ARTICLE 56
When a sovereign or the chief of a State is chosen as arbitrator, the arbitration procedure is set- tled by him.
ARTICLE 57
The umpire is president of the tribunal ex officio.
When the tribunal does not in- clude an umpire, it appoints its own president.
ARTICLE 58
When the compromis is set- tied by a commission, as contem- plated in Article 54, and in the ab- sence of an agreement to the con- trary, the commission itself shall form the arbitration tribunal.
ARTICLE 59
Should one of the arbitrators either die, retire, or be unable for any reason whatever to discharge his functions, the same procedure is followed for filling the vacancy as was followed for appointing him.
ARTICLE 60
The tribunal sits at The Hague unless some other place is se- lected by the parties.
The tribunal can only sit in the territory of a third Power with the tatter's consent.
The place of meeting once fixed can not be altered by the tribunal, except with the consent of the parties.
ARTICLE 61 // the question as to what Ian-
Ixxviii THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
1907
mine les langues a employer, il en est decide par le Tribunal.1
ARTICLE 37
Les Parties ont le droit de nom- mer aupres du Tribunal des De- legues ou agents speciaux, avec la mission de servir d'intermedi- aires entre Elles et le Tribunal.
Elles sont en outre autorisees a charger de la defense de leurs droits et interets devant le Tri- bunal, des conseils ou avocats nommes par Elles a cet effet.
ARTICLE 38
Le Tribunal decide du choix des langues dont il fera usage et dont Temploi sera autorise de- vant lui.2
ARTICLE 62
Les Parties ont le droit de nom- mer aupres du Tribunal des agents speciaux, avec la mission de servir d'intermediaires entre Elles et le Tribunal.
Elles sont en outre autorisees a charger de la defense de leurs droits et interets devant le Tri- bunal, des conseils ou avocats nommes par Elles a cet effet.
Les Membres de la Cour per- manente ne peuvcnt exercer les fonctions d'agents, conseils ou avocats, quen faveur de la Puis- sance qui les a nommes Membres de la Cour.
ARTICLE 39
La procedure arbitrale com- prend en regie generale deux phases distinctes: I'mstruction et les debats.
L'instruction consiste dans la communication faite par les Agents respecti fs, aux membres du Tribunal et a la Partie ad- verse, de tous actes imprimes ou ecrits et de tous documents contenant les moyens invoques dans la cause. Cette communi- cation aura lieu dans la forme
ARTICLE 63
La procedure arbitrale com- prend en regie generale deux phases distinctes : 1'instruction ecrite et les debats.
L'instruction ecrite consiste dans la communication faite par les agents respectifs, aux mem- bres du Tribunal et a la Partie adverse, des memoires, des con- tre-m&moires, et, au besoin, des rcpliques; les Parties y joignent toutes pieces et documents in- voques dans la cause. Cette
1See footnote 1, opposite page. 2See footnote 2, opposite page.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixxix
1899
ARTICLE 37
The parties have the right to appoint delegates or special agents to attend the tribunal, for the pur- pose 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, counsel or advocates ap- pointed by them for this purpose.
ARTICLE 38
The tribunal decides on the choice of languages to be used by itself, and to be authorized for use before it.2
1907
guages are to be used has not been settled by the compromis, it shall be decided by the tribunal.1
ARTICLE 62
The parties are entitled to ap- point special agents to attend the tribunal to act as intermediaries between themselves and the tri- bunal.
They are further authorized to retain for the defence of their rights and interests before the tribunal counsel or advocates appointed by themselves for this purpose.
The members of the Permanent Court may not act as agents, counsel, or advocates except on behalf of the Power which ap- pointed them members of the Court.
ARTICLE 39
As a general rule the arbitral procedure comprises two distinct phases: pleadings and oral dis- cussions.
Preliminary examination con- sists in the communication by the respective agents to the members of the tribunal and to the oppo- site party of all printed or written acts and of all documents contain- ing the arguments invoked in the case. This communication shall be made in the form and within
ARTICLE 63
As a general rule, arbitration procedure comprises two distinct phases : written pleadings and oral discussions.
The pleadings consist in the communication by the respective agents to the members of the tri- bunal and the opposite party of cases, counter-cases, and, if nec- essary, of replies; the parties an- nex thereto all papers and docu- ments called for in the case. This communication shall be made
*Cf. Article 38 of the 1899 Convention. *Cf . Article 61 of the 1907 Convention.
Ixxx
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
et dans les delais determines par le Tribunal en vertu de 1'article 49.
Les debats consistent dans le developpement oral des moyens des Parties devant le Tribunal.
ARTICLE 40
Toute piece produite par Tune des Parties doit etre communi- quee a 1'autre Partie.
1907
communication aura lieu, directe- ment ou par I' intermediate du Bureau International, dans I'ordre et dans les delais determines par le compromis.
Les delais fixes par le com- promis pourront etre prolonges de commun accord par les Parties, ou par le Tribunal quand il le juge necessaire pour arriver a une decision juste.
Les debats consistent dans le developpement oral des moyens des Parties devant le Tribunal.
ARTICLE 64
Toute piece produite par Tune des Parties doit etre communi- quee, en copic certifiee conform*, a 1'autre Partie.
ARTICLE 41
Les debats sont diriges par [le] President.
Us ne sont publics qu'en vertu d'une decision du Tribunal, prise avec Tassentiment des Parties.
Us sont consignes dans les pro- ces-verbaux rediges par des Sec- retaires que nomme le President, Ces proces-verbaux ont seuls ca- ractere authentique.
ARTICLE 42
L'instruction etant close, le Tribunal a le droit d'ecarter du debat tous actes ou documents nouveaux qu'une des Parties
ARTICLE 65
A moins de circonstances spe- ciales, le Tribunal ne se reunit qu'apres la cloture dc I'instruc- tion.
ARTICLE 66
Les debats sont diriges par le President.
Us ne sont publics qu'en vertu d'une decision du Tribunal, prise avec Passentiment des Parties.
11s sont consignes dans des pro- ces-verbaux rediges par des sec- retaires que nomme le President. Ces proces-verbaux sont signts par le President et par un des secretaires; Us ont seuls caractere authentique.
ARTICLE 67
L'instruction etant close, le Tribunal a le droit d'ecarter du debat tous actes ou documents nouveaux qu'une des Parties
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixxxi
1899
the periods fixed by the tribunal in accordance with Article 49.
Discussion consists in the oral development before the tribunal of the arguments of the parties.
ARTICLE 40.
Every document produced by one party must be communicated to the other party.
ARTICLE 41
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 proces- verbaux drawn up by the secre- taries appointed by the president. These proces-verbaux alone have an authentic character.
ARTICLE 42
When the preliminary exami- nation is concluded, the tribunal has the right to refuse discussion of all fresh acts or documents
1907
either directly or through the in- termediary of the International Bureau, in the order and within the time fixed by the com- promis.
The time fixed by the com- promis may be extended by mutual agreement by the parties, or by the tribunal when the latter con- siders it necessary for the purpose of reaching a just decision.
The discussions consist in the oral development before the tri- bunal of the arguments of the parties.
ARTICLE 64
A certified copy of every docu- ment produced by one party must be communicated to the other party.
ARTICLE 65
Unless special circumstances arise, the tribunal does not meet until the pleadings are closed.
ARTICLE 66
The discussions are under the control 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 minutes drawn up by the secretaries ap- pointed by the president. These minutes are signed by the presi- dent and by one of the secretaries and alone have an authentic character.
ARTICLE 67
After the close of the pleadings, the tribunal is entitled to refuse discussion of all new papers or documents which one of the par-
Ixxxii THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
voudrait lui soumettre sans le voudrait lui soumettre sans le consentement de 1'autre. consentement de 1'autre.
ARTICLE 43
Le Tribunal demeure libre de prendre en consideration les actes ou documents nouveaux sur les- quels les agents ou conseils des Parties appelleraient son atten- tion.
En ce cas, le Tribunal a le droit de requerir la production de ces actes ou documents, sauf 1'obligation d'en donner con- naissance a la Partie adverse.
ARTICLE 44
Le Tribunal peut, en outre, requerir des agents des Parties la production de tous actes et de- mander toutes explications neces- saires. En cas de refus, le Tri- bunal en prend acte.
ARTICLE 45
Les agents et les conseils des Parties sont autorises a presenter oralement au Tribunal tous les moyens qu'ils jugent utiles a la defense de leur cause.
ARTICLE 46
Us ont le droit de soulever des exceptions et incidents. Les de- cisions du Tribunal sur ces points sont definitives et ne peuvent don- ner lieu a aucune discussion ulte- rieure.
ARTICLE 47
Les Membres du Tribunal ont le droit de poser des questions aux agents et aux conseils des
ARTICLE 68
Le Tribunal demeure libre de prendre en consideration les actes ou documents nouveaux sur les- quels les agents ou conseils des Parties appelleraient son atten- tion.
En ce cas, le Tribunal a le droit de requerir la production de ces actes ou documents, sauf 1'obligation d'en donner con- naissance a la Partie adverse.
ARTICLE 69
Le Tribunal peut, en outre, requerir des agents des Parties la production de tous actes et de- mander toutes explications neces- saires. En cas de refus, le Tri- bunal en prend acte.
ARTICLE 70
Les agents et les conseils des Parties sont autorises a presenter oralement au Tribunal tous les moyens qu'ils jugent utiles a la defense de leur cause.
ARTICLE 71
Us ont le droit de soulever des exceptions et des incidents. Les decisions du Tribunal sur ces points sont definitives et ne peu- vent donner lieu a aucune discus- sion ulterieure.
ARTICLE 72
Les Membres du Tribunal ont le droit de poser des questions aux agents et aux conseils des
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES Ixxxili
1899
which one party may desire to submit to it without the consent of the other party.
ARTICLE 43
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.
1907
ties may wish to submit to it without the* consent of the other party.
ARTICLE 68
The tribunal is free to take into consideration new papers or docu- ments 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 papers or documents, but is obliged to make them known to the opposite party.
ARTICLE 44
The tribunal can, besides, re- quire from the agents of the par- ties the production of all acts, and can demand all necessary explanations. In case of refusal, the tribunal takes note of it.
ARTICLE 45
The agents and counsel of the parties are authorized to present orally to the tribunal all the ar- guments they may think expedi- ent in defense of their case.
ARTICLE 46
They have the right to raise objections and points. The de- decisions of the tribunal on those points are final, and can not form the subject of any subsequent discussion.
ARTICLE 47
The members of the tribunal have the right to put questions to the agents and counsel of the par-
ARTICLE 69
The tribunal can, besides, re- quire from the agents of the par- ties the production of all papers, and can demand all necessary explanations. In case of refusal the tribunal takes note of it.
ARTICLE 70
The agents and the counsel of the parties are authorized to pre- sent orally to the tribunal all the arguments they may consider expedient in defense of their case.
ARTICLE 71
They are entitled to raise ob- jections and points. The decisions of the tribunal on these points are final and can not form the subject of any subsequent discussion.
ARTICLE 72
The members of the tribunal are entitled to put questions to the agents and counsel of the par-
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
Parties et de leur demander des eclaircissements sur les points douteux.
Ni les questions posees, ni les observations faites par les Mem- bres du Tribunal pendant le cours des debats ne peuvent etre regardees comme Texpression des opinions du Tribunal en general ou de ses membres en particulier.
ARTICLE 48
Le Tribunal est autorise a de- terminer sa competence en inter- pretant le compromis ainsi que les autres traites qui peuvent etre invoques dans la matiere, et en appliquant les principes du droit international.
ARTICLE 49
Le Tribunal a le droit de rendre des ordonnances de pro- cedure pour la direction du proces, de determiner les formes et delais dans lesquels chaque Partie devra prendre ses con- clusions et de proceder a toutes les formalites que comporte I'administration des preuves.
1907
Parties et de leur demander des eclaircissements sur les points douteux.
Ni les questions posees, ni les observations faites par les mem- bres du Tribunal pendant le cours des debats ne peuvent etre regardees comme Fexpression des opinions du Tribunal en general ou de ses membres en particulier.
ARTICLE 73
Le Tribunal est autorise a de- terminer sa competence en inter- pretant le compromis ainsi que les autres actes et documents qui peuvent etre invoques dans la matiere, et en appliquant les principes du droit.
ARTICLE 74
Le Tribunal a le droit de rendre des ordonnances de pro- cedure pour la direction du proces, de determiner les formes, I'ordre et les delais dans lesquels chaque Partie devra prendre ses conclusions finales, et de proceder a toutes les formalites que comporte Tadministration des preuves.
ARTICLE 75
Les Parties s'engagent a four- nir au Tribunal, dans la plus large mesure qu'Elles jugeront pos- sible, tous les moyens neces- saires pour la decision du litige.
ARTICLE 76
Pour toutes les notifications que le Tribunal aurait a faire sur le territoire d'un tierce Puissance contractantef le Tribunal s'adres- sera directement au Gouverne- ment de cette Puissance. II en
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
Ixxxv
1899
ties, and to demand explanations from them on doubtful points.
Neither the questions put nor the remarks made by members of the tribunal during the discus- sions can be regarded as an ex- pression of opinion by the tri- bunal in general, or by its mem- bers in particular.
ARTICLE 48
The tribunal is authorized to declare its competence in inter- preting the compromis as well as the other treaties which may be invoked in the case, and in apply- ing the principles of international law.
ARTICLE 49
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 ar- guments, and to arrange all the formalities required for dealing with the evidence.
1907
ties, and to ask them for explana- tions on doubtful points.
Neither the questions put, nor the remarks made by members of the tribunal in the course of the discussions, can be regarded as an expression of opinion by the tribunal in general or by its mem- bers in particular.
ARTICLE 73
The tribunal is authorized to declare its competence in inter- preting the compromis, as well as the other papers and documents which may be invoked, and in ap- plying the principles of law.
ARTICLE 74
The tribunal is entitled to issue rules of procedure for the conduct of the case, to decide the forms, order, and time in which each party must conclude its final argu- ments, and to arrange all the for- malities required for dealing with the evidence.
ARTICLE 75
The parties undertake to sup- ply the tribunal, as fully as they consider possible, with all the in- formation required for deciding the case.
ARTICLE 76
For all notices which the tri- bunal has to serve in the territory of a third contracting Power, the tribunal shall apply direct to the Government of that Power. The same rule applies in the case of
IxXXvi THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
ARTICLE 50
Les agents et les conseils des Parties ayant presente tous les eclaircissements et preuves a 1'appui de leur cause, le President prononce la cloture des debats.
ARTICLE 51
Les deliberations du Tribunal ont lieu a huis clos. Toute decision est prise a la majorite des Mem- bres du Tribunal.
Le refus d'un Membre de prendre part au vote doit etre constate dans le proces-verbal.
ARTICLE 52
La sentence arbitrale, votee a la majorite des voix, est motivee. Elle est redigee par ecrit et signee par chacun des membres du Tribunal.
Cenx des membres qui sont restes en minorite peuvent con- stater, en signant, leur dissenti- ment.
1907
sera de meme s'il s'agit de faire proceder sur place d I'etablisse- ment de tous moyens de preuve.
Les requetes adressees a cet effet seront executees suivant les moyens dont la Puissance requise dispose d'apres sa le- gislation interieure. Elles ne peuvent etre refusees que si ccttc Puissance les juge de na- ture a porter atteinte a sa souve- raincte ou a sa securitc.
Le Tribunal aura aussi tou- jours la faculte de recourir a I'intermediaire de la Puissance sur le territoire de laquelle il a son siege.
ARTICLE 77
Les agents et les conseils des Parties ayant presente tous les eclaircissements et preuves a 1'appui de leur cause, le President prononce la cloture des debats.
ARTICLE 78
Les deliberations du Tribunal ont lieu a huis clos et restent secretes.
Toute decision est prise a la majorite de ses membres.
ARTICLE 79
La sentence arbitrale est mo- tivee. Elle mentionnc les noms des arbitres; elle est signee par le President et par le greffier ou le secretaire faisant fonctions dc greffier.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES IxXXVU
1899
1907
steps being taken to procure evi- dence on the spot.
The requests for this purpose are to be executed as far as the means at the disposal of the Power applied to under its munic- ipal law allow. They can not be rejected unless the Power in ques- tion considers them calculated to impair its own sovereign rights or its safety.
The Court will equally be always entitled to act through the Power on whose territory it sits.
ARTICLE 50
When the agents and counsel of the parties have submitted all explanations and evidence in support of their case, the presi- dent pronounces the discussion closed.
ARTICLE 51
The deliberations of the tribu- nal take place in private. Every decision is taken by a majority of members of the tribunal.
The refusal of a member to vote must be recorded in the proces-verbal.
ARTICLE 52
The award, given by a major- ity of votes, is accompanied by a statement of reasons. It is drawn up in writing and signed by each member of the tribunal.
Those members who are in the minority may record their dissent when signing.
ARTICLE 77
When the agents and counsel of the parties have submitted all the explanations and evidence in sup- port of their case the president shall declare the discussion closed.
ARTICLE 78
The tribunal considers its de- cisions in private and the proceed- ings remain secret.
All questions are decided by a majority of its members.
ARTICLE 79
The award must give the rea- sons on which it is based. It con- tains the names of the arbitra- tors; it is signed by the president and registrar or by the secretary acting as registrar.
Ixxxviii THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 ARTICLE 53
La sentence arbitrale est lue en seance publique du Tribunal, les agents et les con sells des Parties presents ou dument appeles.
1907 ARTICLE 80
La sentence est lue en seance publique, les agents et les conseils des Parties presents ou dument appeles.
ARTICLE 54
La sentence arbitrale, dument prononcee et notifiee aux agents des Parties en litige, decide defini- tivement et sans appel la contes- tation.
ARTICLE 55
Les Parties peuvent se re- server dans le compromis de de- mander la revision de la sentence arbitrale.
Dans ce cas, et sauf convention contraire, la demande doit etre adressee au Tribunal qui a rendu la sentence. Elle ne peut etre motivee que par la decouverte d'un fait nouveau qui eut ete de nature a exercer une influence decisive sur la sentence et qui, lors de la cloture des debats, etait inconnu du Tribunal lui- meme et de la Partie qui a demande la revision.
La procedure de revision ne peut etre ouverte que par une decision du Tribunal constatant expressement 1'existence du fait nouveau, lui reconnaissant les caracteres prevus par le para-
ARTICLE 81
La sentence, dument prononcee et notifiee aux agents des Parties, decide definitivement et sans appel la contestation.
ARTICLE 82
Tout differcnd qui pourrait surgir entre les Parties, con- cernant I' interpretation et I'exe- cution de la sentence, sera, sauf stipulation contraire, soumis au jugement du Tribunal qui Va rendue.
ARTICLE 83
Les Parties peuvent se reserver dans le compromis de demander la revision de la sentence ar- bitrale.
Dans ce cas, et sauf stipulation contraire, la demande doit etre adressee au Tribunal qui a rendu la sentence. Elle ne peut etre motivee que par la decouverte d'un fait nouveau qui eut ete de nature a exercer une influence decisive sur la sentence et qui, lors de la cloture des debats, etait inconnu du Tribunal lui- meme et de la Partie qui a demande la revision.
La procedure de revision ne peut etre ouverte que par une decision du Tribunal constatant expressement 1'existence du fait nouveau, lui reconnaissant les caracteres prevus par le para-
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES 1XXX1X
1899
ARTICLE 53
The award is read out at a pub- lic meeting of the tribunal, the agents and counsel of the parties being present, or duly summoned to attend.
ARTICLE 54
The award, duly pronounced and notified to the agents of the parties at variance, puts an end to the dispute definitively and with- out appeal.
ARTICLE 55
The parties can reserve in the compromis the right to demand the revision of the award.
In this case, and unless there be an agreement to the con- trary, the demand must be ad- dressed to the tribunal which pronounced the award. It can only be made on the ground of the discovery of some new fact calculated to exercise a decisive influence on the award, and which, at the time the discussion was closed, was unknown to the tribunal and to the party de- manding the revision.
Proceedings for revision can only be instituted by a decision of the tribunal expressly record- ing the existence of the new fact, recognizing in it the character described in the foregoing para-
1907 ARTICLE 80
The award is read out in pub- lic sitting, the agents and counsel of the parties being present or duly summoned to attend.
ARTICLE 81
The award, duly pronounced and notified to the agents of the parties, settles the dispute defin- itively and without appeal.
ARTICLE 82
Any dispute arising between the parties as to the interpretation and execution of the award shall, in the absence of an agreement to the contrary, be submitted to the tri- bunal which pronounced it.
ARTICLE 83
The parties can reserve in the compromis the right to demand the revision of the award.
In this case and unless there be a stipulation to the contrary, the demand must be addressed to the tribunal which pronounced the award. It can only be made on the ground of the discovery of some new fact calculated to exercise a decisive influence upon the award and which was unknown to the tri- bunal and to the party which de- manded the revision at the time the discussion was closed.
Proceedings for revision can only be instituted by a decision of the tribunal expressly record- ing the existence of the new fact, recognizing in it the character described in the preceding para-
xc
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
graphe precedent et declarant a ce titre la demande recevable. Le compromis determine le delai dans lequel la demande de revision doit etre formee.
1907
graphe precedent et declarant a ce titre la demande recevable.
Le compromis determine le delai dans lequel la demande de revision doit etre formee.
ARTICLE 56
La sentence arbitrate n'est obligatoire que pour les Parties qui ont conclu le compromis.
Lorsqu'il s'agit de 1'interpreta- tion d'une convention a laquelle ont participe d'autres Puissances que les Parties en litige, celles-ci notifient aux premieres le com- promis qu'elles ont conclu. Cha- cune de ces Puissances a le droit d'intervenir au proces. Si une ou plusieurs d'entre Elles ont profite de cette faculte, 1'interpretation contenue dans la sentence est egalement obligatoire a leur egard.
ARTICLE 57
Chaque Partie supporte ses propres frais et une part egale des frais du Tribunal.
ARTICLE 84
La sentence arbitrate n'est obligatoire que pour les Parties en litige.
Lorsqu'il s'agit de 1'interpreta- tion d'une convention a laquelle ont participe d'autres Puissances que les Parties en litige, celles-ci avertisscnt en temps utile toutes les Puissances signataires. Cha- cune de ces Puissances a le droit d'intervenir au proces. Si une ou plusieurs d'entre Elles ont profite de cette faculte, Finter- pretation contenue dans la sen- tence est egalement obligatoire a leur egard.
ARTICLE 85
Chaque Partie supporte ses propres frais et une part egale des frais du Tribunal.
CHAPITRE IV. — De la procedure sommaire d 'arbitrage
ARTICLE 86
En vue de faciliter le fonc- tionnement de la justice arbitrate, lorsqu'il s'agit de litiges de nature a comporter une procedure som- maire f les Puissances contrac- tantes arretent les regies ci-apres qui seront suivies en I'absence de stipulations differentes, et sous reserve, le cas echeant, de rap- plication des dispositions du chapitre III qui ne seraient pas contraires.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
XC1
1899
graph, and declaring the demand admissible on this ground.
The compromis fixes the period within which the demand for re- vision must be made.
ARTICLE 56
The award is only binding on the parties who concluded the compromis.
When there is a question of in- terpreting a Convention to which Powers other than those con- cerned in the dispute are parties, the latter notify to the former the compromis they have concluded. Each of these Powers has the right to intervene in the case. If one or more of them avail them- selves of this right, the interpreta- tion contained in the award is equally binding on them.
1907
graph, and declaring the demand admissible on this ground.
The compromis fixes the period within which the demand for re- vision must be made.
ARTICLE 84
The award is not binding ex- cept on the parties in dispute.
When it concerns the interpre- tation of a Convention to which Powers other than those in dis- pute are parties, they shall inform all the signatory Powers in good time. Each of these Powers is entitled to intervene in the case. If one or more avail themselves of this right, the interpretation contained in the award is equally binding on them.
ARTICLE 57
Each party pays its own ex- penses and an equal share of those of the tribunal.
ARTICLE 85
Each party pays its own ex- penses and an equal share of the expenses of the tribunal.
CHAPTER IV. — Arbitration by Summary Procedure
ARTICLE 86
With a view to facilitating the working of the system of arbitra- tion in disputes' admitting of a summary procedure, the contract- ing Powers adopt the following rules, which shall be observed in the absence of other arrangements and subject to the reservation that the provisions of Chapter III ap- ply so far as may be.
XCil THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
ARTICLE 87
Chacune des Parties en litige nomme un arbitre. Les deux ar- bitres ainsi designes choisissent un surarbitre. S'ils ne tombent pas d' accord a ce sujet, chacun prcsente deux candidats pris sur la liste generate des Membres de la Cour pcrmanente en dehors des Membres indiques par cha- cunc des Parties Elles-memes et nfetant les nationanx d'aucune d'Elles; le sort determine lequel des candidats ainsi presentes sera le surarbitre.
Le surarbitre preside le Tri- bunal, qui rend ses decisions d la majorite des voix.
ARTICLE 88
A defaut d'accord prealable, le Tribunal fixe, des qu'il est consti- tue, le delai dans lequel les deux Parties devront lui soumettre leurs memoir es respectifs.
ARTICLE 89
Chaque Partie est representee devant le Tribunal par un agent qui serf d'intcrmediaire entre Le Tribunal ct le Gouvernement qui I'a designc.
ARTICLE 90
La procedure a lieu exclusive- mcnt par ecrit. Toutefois, chaquc Partie a le droit de dcmander la comparution de temoins et d' ex- perts. Le Tribunal a, de son cote, la facultc de demander des expli- cations orales aux agents des deux Parties, ainsi qu'aux experts et aux temoins dont il juge la com- parution utile.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES XC111
1899 1907
ARTICLE 87
Each of the parties in dispute appoints an arbitrator. The two arbitrators thits selected choose an umpire. If they do not agree on this point, each of them proposes two candidates taken from the general list of the members of the Permanent Court exclusive of the members appointed by either of the parties and not being nationals of either of them; •which of the candidates thus proposed shall be the umpire is determined by lot.
The umpire presides over the tribunal, which gives its decisions by a majority of votes.
ARTICLE 88
In the absence of any previous agreement the tribunal, as soon as it is formed, settles the time •with- in •which the two parties must sub- mit their respective cases to it.
ARTICLE 89
Each party is represented be- fore the tribunal by an agent, •who serves as intermediary between the tribunal and the Govern- ment 'who appointed him.
ARTICLE 90
The proceedings are conducted exclusively in 'writing. Each party, however, is entitled to ask that •witnesses and experts should be called. The tribunal has, for its part, the right to demand oral explanations from the agents of the two parties, as •well as from the experts and •witnesses whose appearance in Court it may con- sider useful.
XC1V
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
DISPOSITIONS GENERALES
ARTICLE 58
La presente Convention sera ratifiee dans le plus bref delai possible.
Les ratifications seront de- posees a La Haye.
II sera dresse du depot de chaque ratification un proces- verbal, dont une copie, certifiee con forme, sera remise par la voie diplomatique a toutes les Puissances qui ont etc repre- sentees a la Conference Inter- nationale de la Paix de La Haye.
1907
TITRE V. — DISPOSITIONS Finales ARTICLE 91
La presente Convention du- ment ratifiee remplacera, dans les rapports entre les Puissances contract antes, la Convention pour le rcglement pacifique des con- flits internationaux du 29 juttlet 1899.
ARTICLE 92
La presente Convention sera ratifiee aussitot quc possible.
Les ratifications seront de- posees a La Haye.
Le premier depot dc ratifica- tions sera constate par un proces- verbal signe par les representants des Puissances qui y prennent part et par le Ministre des Affaires £trangeres des Pays- Bos.
Les depots ultcrieurs de rati- fications se feront ou moyen d'une notification ecrite, adressee au Gouvernement des Pays-Bos et accompagnee de I' instrument dc ratification.
Copie certifiee conforme du proces-verbal relotif au premier depot de ratifications, des noti- fications mentionnees a Valinea precedent, ainsi que des instru- ments de ratification, sera im- mediatement remise, par les soins du Gouvernement des Pays-Bas et par la voie diplomatique, aux Puissances conviees a la Deux- ieme Conference de la Paix, ainsi qu'oux autres Puissances qui auront adhere a la Conven- tion. Dans les cos vises par Valinea precedent, ledit Gou- vernement Leur fera connaitre
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
XCV
1899 GENERAL PROVISIONS
ARTICLE 58
The present Convention shall be ratified as speedily as possible.
The ratifications shall be de- posited at The Hague.
A proces-verbal shall be drawn up recording the receipt of each ratification, and a copy duly cer- tified shall be sent, through the diplomatic channel, to all the Powers who were represented at the International Peace Confer- ence at The Hague.
1907
PART V. — Final PROVISIONS ARTICLE 91
The present Convention, duly ratified, shall replace, as between the contracting Powers, the Con- vention for the pacific settlement of international disputes of the 2$th July, 1890.
ARTICLE 92
The present Convention shall be ratified as soon as possible.
The ratifications shall be de- posited at The Hague.
The first deposit of ratifications shall be recorded in a proccs-ver- bal signed by the representatives of the Powers which take part therein and by the Netherland Minister for Foreign Affairs.
The subsequent deposits of ratifications shall be made by means of a written notification, addressed to the Netherland Gov- ernment and accompanied by the instrument of ratification.
A duly certified copy of the proces-verbal relative to the first deposit of ratifications, of the notifications mentioned in the preceding paragraph, and of the instruments of ratification, shall be immediately sent by the Neth- erland Government, through the diplomatic channel, to the Powers invited to the Second Peace Con- ference, as well as to those Powers which have adhered to the Con- vention. In the cases contem- plated in the preceding paragraph, the said Government shall at the same time inform the Powers of
XCV1
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
ARTICLE 59
Les Puissances non signataires qui ont etc representees a la Con- ference Internationale de la Paix pourront adherer a la presente Convention. Elles auront a cet effet a faire connaitre leur ad- hesion aux Puissances con- tractantes, au moyen d'une notification ecrite, adressee au Gouvernement des Pays-Bas et communiquee par celui-ci a toutes les autres Puissances con- tractantes.
ARTICLE 60
Les conditions auxquelles les Puissances qui n'ont pas etc re- presentees a la Conference Inter- nationale de la Paix pourront adherer a la presente Convention formeront 1'objet d'une entente ulteiieure entre les Puissances contractantes.
1907
en meme temps la date a laquelle il a refu la notification.
ARTICLE 93
Les Puissances non signataires qui ont etc conviees a la Deu- xieme Conference de la Paix pourront adherer a la presente Convention.
La Puissance qui desire ad- herer notifie par cent son in- tention au Gouvernement des Pays-Bas en lui transmettant I'acte d'adhesion qui sera de- pose dans les archives dudit Gouvernement.
Ce Gouvernement transmettra immediatement a toutes les autres Puissances conviees & la Deu- xieme Conference de la Paix copie certifiee conforme de la notifica- tion ainsi que de I'acte d'ad- hcsionf en indiquant la date a laquelle il a regu la notification.
ARTICLE 94
Les conditions auxquelles les Puissances qui n'ont pas ete con- viees a la Deuxieme Conference de la Paix, pourront adherer \ la presente Convention, forme- ront Tobjet d'une entente ulte- rieure entre les Puissances con- tractantes.
ARTICLE 95
La presente Convention pro- duira effet, pour les Puissances qui auront participe au premier depot de ratifications, soixante jours apres la date du proces-
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
XCV11
1899
ARTICLE 59
The non-signatory Powers who were represented at the Interna- tional Peace Conference can ad- here to the present Convention. For this purpose they must make known their adhesion to the con- tracting Powers by a written noti- fication addressed to the Nether- land Government, and communi- cated by it to all the other con- tracting Powers.
1907
the date on which it received the notification.
ARTICLE 93
Non-signatory Powers which have been invited to the Second Peace Conference may adhere to the present Convention.
The Power which desires to ad- here notifies its intention in writ- ing to the Netherland Govern- ment, forwarding to it the act of adhesion, which shall be deposited in the archives of the said Govern- ment.
ARTICLE 601
The conditions on which the Powers who were not represented at the International Peace Con- ference can adhere to the present Convention shall form the subject of a subsequent agreement among the contracting Powers.
This Government shall imme- diately forward to all the other Powers invited to the Second Peace Conference a duly certified copy of the notification as well as of the act of adhesion, mentioning the date on which it received the notification.
ARTICLE 94
The conditions on which the Powers which have not been invited to the Second Peace Con- ference may adhere to the present Convention shall form the subject of a subsequent agreement be- tween the contracting Powers.
ARTICLE 95
The present Convention shall take effect, in the case of the Powers which were not a party to the first deposit of ratifications, sixty days after the date of the
1A protocol establishing, as regards the Powers unrepresented at the First Conference, the mode of adhesion to this Convention, was signed at The Hague, June 14, 1907, by representatives of all the Powers represented at the 1899 Conference.
xcvin
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
ARTICLE 61
S'il arrivait qu'une des Hautes Parties contractantes denongat la presente Convention, cette de- nonciation ne produirait ses effets qu'un un apres la notification faite par ecrit au Gouvernement des Pays-Bas et communiquee immediatement par celui-ci a toutes les autres Puissances con- tractantes.
Cette denonn'ation ne pro- duira ses effets qu'a 1'egard de la Puissance qui Taura notifiee.
En foi de quoi, les Plenipoten- tiaires ont signe la presente Con- vention et Tont revetue de leurs sceaux.
1907
verbal de ce depot etf pour les Puissances qui ratifieront ulte- rieurement ou qui adhereront, soixante jours apres que la noti- fication de leur ratification ou de leur adhesion aura ete regue par le Gouvernement des Pays-Bos.
ARTICLE 96
S'il arrivait qu'une des Puis- sances contractantes voulut de- noncer la presente Convention, la denonciation sera notifiee par ecrit au Gouvernement des Pays- Bas qui communiquera imme- diatement copie certifiee conforme de la notification a toutes les autres Puissances en leur faisant savoir la date a laquette il I'a reque.
La denonciation ne produira ses effets qu'a 1'egard de la Puis- sance qui 1'aura notifiee et un an apres que la notification en sera parvenue au Gouvernement des Pays-Bas.
ARTICLE 97
Un registre tenu par le Minis- tere des Affaires Etrangeres des Pays-Bas indiquera la date du depot de ratifications effectue en vertu de I'article 92 alineas 3 et 4, ainsi que la date a laquette auront ete regues les notifications d'adhesion (article pj alinea 2) ou de denonciation (article 96 alinea, i).
Chaque Puissance contrac- tante est admise a prendre con- naissance de ce registre et a en demander des extracts certifies conformes.
En foi de quoi, les Plenipoten- tiaires ont revetu la presente Con- vention de leurs signatures.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
XC1X
1899
ARTICLE 61
In the event of one of the high contracting Parties denouncing the present Convention, this de- nunciation would not take effect until a year after its notification made in writing to the Nether- land Government, and by it com- municated at once to all the other contracting Powers.
This denunciation shall only affect the notifying Power.
1907
proccs'verbal of this deposit, and, in the case of the Powers which ratify subsequently or which ad- here, sixty days after the notifica- tion of their ratification or of their adhesion has been received by tht Nethcrland Government.
ARTICLE 96
In the event of one of the con- tracting Powers wishing to de- nounce the present Convention, the denunciation shall be notified in writing to the Netherland Gov- ernment, which shall immediately communicate a duly certified copy of the notification to all the other Powers informing them of the date on which it was received.
The denunciation shall only have effect in regard to the noti- fying Power, and one year after the notification has reached the Netherland Government.
In faith of which the plenipo- tentiaries have signed the present Convention and affixed their seals to it.
ARTICLE 97
A register kept by the Nether- land Minister for Foreign Affairs shall give the date of the deposit of ratifications effected in virtue of Article 92, paragraphs 5 and 4, as well as the date on which the notifications of adhesion (Article 93 > paragraph 2) or of denuncia- tion (Article 96, paragraph j) have been received.
Each contracting Power is en- titled to have access to this regis- ter and to be supplied with duly certified extracts from it.
In faith whereof the plenipo- tentiaries have appended their signatures to the present Conven- tion.
THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899
Fait a La Haye, le vingt neuf juillet, mille huit cents quatre vingt dix-neuf, en un seul exem- plaire qui restera depose dans les archives du Gouvernement des Pays-Bas, et dont des copies, cer- tifiees conformes, seront remises par la voie diplomatique aux Puissances contractantes.
1907
Fait a La Haye, le dix-huit octobre mil neuf cent sept, en un seul exemplaire qui restera de- pose dans les archives du Gou- vernement des Pays-Bas et dont des copies certifiees conformes, seront remises par la voie di- plomatique aux Puissances con- tractantes.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
1899 1907
ci
Done at The Hague, the 29th July, 1899, in a single copy, which shall remain in the archives of the Netherland Government, and copies of it, duly certified, be sent through the diplomatic channel to the contracting Powers.
[Here follow signatures.]
Done at The Hague, the i8th October, 1907, in a single copy, which shall remain deposited in the archives of the Netherland Government, and duly certified copies of which shall be sent, through the diplomatic channel, to the contracting Powers.
[Here follow signatures.]
Cii THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
RATIFICATIONS, ADHESIONS AND RESERVATIONS
The 1899 Convention was ratified by all the signatory Powers on the dates indicated :
Austria-Hungary September 4, 1900
Belgium September 4, 1900
Bulgaria September 4, 1900
China November 21, 1904
Denmark September 4, 1900
France September 4, 1900
Germany September 4, 1900
Great Britain September 4, 1900
Greece April 4, 1901
Italy September 4, 1900
Japan October 6, 1900
Luxemburg July 12, 1901
Mexico April 17, 1901
Montenegro October 16, 1900
Netherlands September 4, 1900
Norway (See Sweden and Norway.)
Persia September 4, 1900
Portugal September 4, 1900
Roumania September 4, 1900
Russia September 4, 1900
Serbia May 11, 1901
Siam September 4, 1900
Spain September 4, 1900
Sweden and Norway September 4, 1900
Switzerland December 29, 1900
Turkey June 12, 1907
United States September 4, 1900
Adhesions:
Argentine Republic June 15, 1907
Bolivia June 15, 1907
Brazil June 15, 1907
Chile June 15, 1907
Colombia June 15, 1907
Cuba June 15, 1907
Dominican Republic June 15, 1907
Ecuador July 3, 1907
Guatemala June 15, 1907
Haiti June 15, 1907
Nicaragua June 15, 1907
Panama June 1 5, 1907
Paraguay June 15, 1907
Peru June 15, 1907
Salvador June 20, 1907
Uruguay Tune 17, 1907
Venezuela June 15, 1907
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES C1I1
Reservations:*
Roumania
Under the reservations formulated with respect to Articles 16, 17 and 19 of the present Convention (15, 16 and 18 of the project presented by the committee on examination), and recorded in the proccs-verbal of the sitting of the Third Commission of July 20, 1899.2 Extract from the proccs-verbal-
The Royal Government of Roumania being completely in favor of the principle of facultative arbitration, of which it appre- ciates the great importance in international relations, neverthe- less does not intend to undertake, by Article 15, an engagement to accept arbitration in every case there provided for, and it believes it ought to form express reservations in that respect.
It can not therefore vote for this article, except under that reservation.
The Royal Government of Roumania declares that it can not adhere to Article 16 except with the express reservation, entered in the proccs-verbal, that it has decided not to accept, in any case, an international arbitration for disagreements or disputes previous to the conclusion of the present Convention
The Royal Government of Roumania declares that in ad hering to Article 18 of the Convention, it makes no engagement in regard to obligatory arbitration.3
Serbia
Under the reservations recorded in the proccs-verbal of the Third Commission of July 20, 1899.2
Extract from the proccs-verbal'
In the name of the Royal Government of Serbia, we have the honor to declare that our adoption of the principle of good offices and mediation does not imply a recognition of the right of third States to use these means except with the extreme re- serve which proceedings of this delicate nature require.
We do not admit good offices and mediation except on con- dition that their character of purely friendly counsel is main- tained fully and completely, and we never could accept them in forms and circumstances such as to impress upon them the character of intervention.4
Turkey
Under reservation of the declaration made in the plenary sitting of the Conference of July 25, 1899.
Extract from the proccs-verbal-
The Turkish delegation, considering that the work of this Conference has been a work of high loyalty and humanity, destined solely to assure general peace by safeguarding the in- terests and the rights of each one, declares, in the name of its Government, that it adheres to the project just adopted, on the following conditions :
1A11 these reservations were made at signature.
Reservations maintained at ratification.
8Declaration of Mr. Beldiman. Proces-verbaux, pt iv, pp. 48, 49.
^Declaration of Mr. Miyatovitch, Ibid., p. 47.
Civ THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1. It is formally understood that recourse to ^ood offices and mediation, to commissions of inquiry and arbitration is purely facultative and could not in any case assume an obligatory character or degenerate into interventions;
2 The Imperial Government itself will be the judge of the cases where its interests would permit it to admit these methods without its abstention or refusal to have recourse to them being considered by the signatory States as an unfriendly act.
It goes without saying that in no case could the means in question be applied to questions concerning interior regulation.1
United States
Under reservation of the declaration made at the plenary sitting of the Conference on the 25th of July, 1899.2
Extract from the proces-vcrbal:
The delegation of the United States of America on signing the Convention for the pacific settlement of international dis- putes, as proposed by the International Peace Conference, makes 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 con- tained in the said Convention be construed to imply a relinquish- ment by the United States of America of its traditional attitude toward purely American questions.3
The 1907 Convention was ratified by the following signatory Powers on the dates indicated :
Austria-Hungary November 27, 1909
Belgium August 8, 1910
Bolivia November 27, 1909
Brazil January 5, 1914
China November 27, 1909
Cuba February 22, 1912
Denmark November 27, 1909
France October 7, 1910
Germany November 27, 1909
Guatemala March 15, 1911
Haiti February 2, 1910
Japan December 13, 1911
Luxemburg September 5, 1912
Mexico November 27, 1909
Netherlands November 27, 1909
Norway September 19, 1910
Panama September 11, 1911
Declaration of Turkhan Pasha. Proces-verbaux, pt. i, p. 70. This reserva- tion does not appear in the instrument of ratification.
Reservation maintained at ratification.
*Ibid., p. 69. Compare the reservation of the United States to the 1907 Con- vention.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES CV
Portugal April 13, 1911
Roumania March 1, 1912
Russia November 27, 1909
Salvador November 27, 1909
Siam March 12, 1910
Spain March 18, 1913
Sweden November 27, 1909
Switzerland May 12, 1910
United States November 27, 1909
Adhesion:
Nicaragua December 16, 1909
The following Powers signed the Convention but have not yet ratified :
Argentine Republic Montenegro
Bulgaria Paraguay
Chile Persia
Colombia Peru
Dominican Republic Serbia
Ecuador Turkey
Great Britain Uruguay
Greece Venezuela Italy
Reservations:* Brazil
With reservation as to Article 53, paragraphs 2, 3, and 4.2
Chile
Under reservation of the declaration formulated with regard to Article 39 in the seventh meeting of the First Commission on October 7.
Extract from the procts-yerbal:
The delegation of Chile desires to make the following decla- ration in the name of its Government with respect to this article. Our delegation at the time of signing the Convention of 1899 for the pacific settlement of international disputes did so with the reservation that the adhesion of its Government as regards Article 17 would not include controversies or questions prior to the celebration of the Convention.
The delegation of Chile believes it to be its duty to-day to re- new, with respect to the same provision, the reservation that it has previously made, although it may not be strictly necessary in view of the similar character of the provision 8
XA11 these reservations were made at signature except the second reservation of the United States. "Reservation maintained at ratification. 8Statement of Mr. Domingo Gana. Actes et documents, vol. ii, p. 121.
CV1 THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
Greece
With the reservation of paragraph 2 of Article 53.
Japan
With reservation of paragraphs 3 and 4 of Article 48, of para- graph 2 of Article 53 and of Article 54.1
Roumania
With the same reservations formulated by the Roumanian plenipotentiaries on signing the Convention for the pacific settlement of international disputes of July 29, 1899.1
Switzerland
Under reservation of Article 53, number 2.1
Turkey
Under reservation of the declarations recorded in the proccs- vcrbal of the ninth plenary session of the Conference held on October 16, 1907.
Extract from the proccs-verbal
The Ottoman delegation declares, in the name of its Govern- ment, that while it is not unmindful of the beneficent influence which good offices, mediation, commissions of inquiry and arbi- tration are able to exercise on the maintenance of the pacific relations between States, in giving its adhesion to the whole of the draft, it does so on the understanding that such methods re- main, as before, purely optional; it could in no case recognize them as having an obligatory character rendering them susceptible of leading directly or indirectly to an intervention.
The Imperial Government proposes to remain the sole judge of the occasions when it shall be necessary to have recourse to the different proceedings or to accept them without its deter- mination on the point being liable to be viewed by the signatory States as an unfriendly act.
It is unnecessary to add that such methods should never be applied in cases of internal order.2
United States
Under reservation of the declaration made in the plenary ses- sion of the Conference held on October 16, 1907.1 Extract from the proems-verbal.
The delegation of the United States renews the reserva- tion made in 1899 on the subject of Article 48 of the Conven- tion for the pacific settlement of international disputes in the form of the following declaration :
Nothing contained in this Convention shall be so construed as to require the United States of America to depart from its tra- ditional policy of not intruding upon, interfering with, or en- tangling itself in ,the political questions of 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.8
Reservation maintained at ratification.
Statements of Turkhan Pasha. Actes et documents, vol. i. p. 336.
8Statement of Mr. David Jayne Hill. Ibid., vol. i, p. 335.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES CV11
The act of ratification contains the following reservation:
That the United States approves this Convention with the un- derstanding that recourse to the Permanent Court for the settle- ment of differences can be had only by agreement thereto through general or special treaties of arbitration heretofore or hereafter concluded between the parties in dispute; and the United States now exercises the option contained in Article 53 of said Con- vention, to exclude the formulation of the compromis by the Permanent Court, and hereby excludes from the competence of the Permanent Court the power to frame the compromis re- quired by general or special treaties of arbitration concluded or hereafter to be concluded by the United States, and further expressly declares that the compromis required by any treaty of arbitration to which the United States may be a party shall be settled only by agreement between the contracting parties, unless such treaty shall expressly provide otherwise.
LIST OF AUTHORITIES
OFFICIAL PUBLICATIONS OF THE INTERNATIONAL BUREAU OF THE PERMANENT COURT OF ARBITRATION
Canevaro Case: Protocols* des Seances ct Sentence du Tribunal d'arbitrage constitute en execution du Compromis signe entre I'ltalie ct le Perou le 20 avril 1910 Differend au sujet de la reclamation dcs Freres Canevaro. The Hague, Van Langenhuysen Brothers, 1912.
Carthage and Manouba Cases : Compromis, Protocols dcs Seances et Sen- tences du Tribunal d'arbitrarje Franc o-Italien. I. Affaire du "Carthage." II. Affaire du "Manouba." The Hague, Van Langenhuysen Brothers, 1913.
Casablanca Case: Protocoles des Seances du Tribunal arbitral, constitue en execution du Protocole signe a Berlin le 10 novembre 1908 et du Compromis du 24 novembre 1908.
Grisbadarna Case* Recueil dcs Comptcs rendus de la visite des lieux et des Protocoles des Seances du Tribunal arbitral, constitue en vertu de la Con- vention du 14 mars 1908, pour juger la question de la delimitation d'une cer- taine partie de la frontitre maritime entre la Norvege et la Sutde. The Hague, Van Langenhuysen Brothers, 1909.
Island of Timor Case: Sentence arbitrate rendue en execution du Compromis signe a La Haye le 3 avril 1913 cntrc les Pays-Bas et le Portugal au sujet de la delimitation d'une partie de leurs possessions dans I'lle de Timor. Neu- chatel, Attinger Brothers, 1914.
Japanese House Tax Case: Recueil des Actes et Protocoles concernant le Litigc entre I'Allemagne, la France et la Grande Bretagnc d'une part et le Japan d'autre part. Tribunal d'arbitrage constitue en vertu de Protocoles signes a Tokyo le 28 aout 1902 entre les Puissances susmentionntes. The Hague, Van Langenhuysen Brothers, 1905.
Manouba Case: See Carthage and Manouba Cases.
Muscat Dhows Case: Recueil des Actes • t Protocoles concernant le Differend entre la France et la Grande Bretagti-- a propos des boutres de Mascatet soumis au Tribunal d'arbitrage constiliie en vertu du Compromis arbitral conclu a Londres le 13 octobre 1904 entre les Puissances susmentionntes. The Hague, Van Langenhuysen Brothers, 1905.
North Atlantic Coast Fisheries Case: North Atlantic Coast Fisheries Tribunal of Arbitration constituted under a Special Agreement signed at Washington, January 17, 1909, between the United States of America and Great Britain. The Hague, Van Langenhuysen Brothers, 1910.
Orinoco Steamship Company Case: Protocoles dcs Stances du Tribunal d'ar- bitrage constitue en execution du Compromis signe entre les £tats-Unis d'Amcriquc ct les £tats-Ums du Venezuela le 13 fevricr 1909. Differend au sujet d'une reclamation de la Compagnie des bateaux a vapeur "Orinoco." The Hague. Van Langenhuysen Brothers, 1910.
Pious Fund Case: Fecucil des Attcs ct Protocoles concernant le Litige du "Fonds Pieux des Calif ormes" soumis au Tribunal d'arbitrage constitue en vertu du Traiie corclu a Washington le 22 mar 1902 entre les £tats-Unis d'Amcriquc ct les £tats-Unis Mcxicains. The Hague, Van Langenhuysen Brothers, 1902
CX LIST OF AUTHORITIES
Rapport du Conseil Administratif de la Cour Permanente d' Arbitrage sur les travail* de la Cour, sur le fonctionnement des services administratifs et sur les dcpenses pendant I'annee IQIJ. The Haggle, Van Langenhuysen Brothers.
Russian Indemnity Case : Protocoles des Stances et Sentence du Tribunal df ar- bitrage constitue en vertu du Compromis d'arbitrage signe a Constantinople cntrc la Russie ct la Turqute le 22 juillet/4 aout row. Litige Russo-Turc relatif aux dommages-interets reclames par la Russie pour le retard apporte dans \e payement des indemnites dues aux particuliers russes Uses par la guerre de 1877-1878. The Hague, Van Langenhuysen Brothers, 1912.
Savarkar Case: Protocoles des Seances et Sentence du Tribunal d'arbitrage con- stitue en execution du Compromis signe cntre la France et la Grande-Bre- tagne le 25 octobre lyio. Differend au sujet de I'arrcstation ct de la reinte- gration a bord du paquebot "Morea" le 8 juillet 19 w, d Marseille du sujet britannique (British Indian) Savarkar. The Hague, Van Langenhuysen Brothers, 1911.
Tavignano, Camouna and Gaulois Cases: (i) Commission Internationale d'En- quete constitue a Malte en vertu de la convention d'enquete signee a Rome entre la France et Vlialie, le 20 mai 1912. Incidents du vapeur Francois "Tavignano" et des Mahonnes "Camouna" ct "Gaulois" arrctes et visites par les contrc-torpilleurs "Fulmine" ct "Canopo" de la marine royale Italienne. Documents et proccs-vcrbaux. (2) Affaire dc la Capture et de la Saisie mo- mentance du Vapeur postal fran^ais "Tavignano" et des coups de canon tires sur les Mahonnes tunisienncs "Kamouna" et "Gaulois" par les Forces navales italiennes. Memoire prescnte au nom du Gouverncment de la Re- publique frangais.
Venezuelan Preferential Case: Recueil des Actes et Protocoles concemant le Litige entre I'Allemagne, V Angle tcrre et I'ltalie d'une part et le Ven&suela d'autre part. Tribunal d'arbitrage constitue en vertu des protocoles signts d Washington, le 7 mai 1903 entre les Puissances susmentionnees. The Hague, Van Langenhuysen Brothers, 1904.
MISCELLANEOUS
American Journal of International Law. New York, Baker, Voorhis and Company.
American State Papers, Foreign Relations. Documents, Legislative and Execu- tive, of the Congress of the United States [1789-1833]. 6 vols.
Annals of the Congress of the United States. First to Eighteenth Congress. 47 vols., Washington, D. C.
Annuaire de I'lnstitut de droit international, vol. 25, 1912. Boletin del Ministerio de Relaciones Exterior es (Peru) No. xxxv. British and Foreign State Papers.
Conference international de la paix. La Haye, 18 mai-29 juillet jtfoo. Minis- ter e des affaires etrangdrrs. New ed. The Hague, Martinus Nijhoff, 1907. (Cited Proccs-verbaux.)
Deuxicme conference international^ de la paix. La Haye, 15 juin-i8 octobre 1907. Actcs et documents. Minister e des affaires etrangeres. The Hague, National print, 1907. (Cited Actes et documents.)
Foreign Relations of the United States. Washington, Government Printing Office.
LIST OF AUTHORITIES CXI
Hague Conventions and Declarations of 1899 and 1907 accompanied by Tables of Signatures. Ratifications and Adhesions of the Various Powers and Texts of Reservations. Edited by James Brown Scott, New York, Oxford Uni- versity Press, American Branch, 2d ed., 1915.
Lange, Chr.-L. Union Interparlementaire. Resolutions des Conferences et Decisions principales du Conseil. 2d. ed., 1911.
Memorial Diplomatique, Le. Paris.
Malloy, William M. Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and Other Powers, 1776-1909. 2 vols. Washington, Government Printing Office, 1910.
Martens, G. Fr. de. Nouveau Recueil Central de Traites et Autres Actes rela* tives aux Rapports de Droit International. Leipsic.
Official records of the Imperial German Embassy at Washington, D. C. Pellew, George. John Jay.
Proceedings of Fourth National Conference of the American Society for Judicial Settlement of International Disputes, 1913. Baltimore, Williams and Wilkins Company, 1914.
Report of Jackson H. Ralston, Agent of the United States and of Counsel, in the Matter of the Case of the Pious Fund of the Californias, Heard before a Tribunal of the Permanent Court of Arbitration under the Hague Conven- tion of 1899, Sitting at The Hague, September 15, 1902, to October 14, 1902, with Pleadings, Appendix, Briefs, and Record of the Entire Proceed- ings. Washington, Government Printing Office, 1902.
Statutes at Large of the United States of America. Sweden. Royal Resolution, No. 70, 1904.
United States and Mevican Claims Commission, Opinions. (MS. Department of State.)
United States and Venezuela Arbitration at The Hague, Appendix to the Case of the United States. 2 vols. Washington, Government Printing Office, 1910.
United States Treaty Series.
Wharton, Francis. Diplomatic Correspondence of the 4mcrican Revolution, Washington, Government Printing Office.
Yale Law Journal, New Haven, Conn.
ARBITRATIONS
BEFORE THE
HAGUE TRIBUNALS
THE PIOUS FUND CASE
between
MEXICO and THE UNITED STATES Decided October 14, 1902
Syllabus
The case on trial was known as the "Pious Fund of the Califor- nias." It originated in donations made by Spanish subjects during the latter part of the seventeenth and the first half of the eighteenth centuries for the spread of the Roman Catholic faith in the Cali- fornias. These gifts, amounting approximately to $1,700,000, were made in trust to the Society of Jesus for the execution of the pious wish of the founders. The Jesuits accepted the trust and discharged its duties until they were disabled from its further administration by their expulsion in 1767 from the Spanish dominions by the King of Spain and by the suppression of the order by the Pope in 1773. The Crown of Spain took possession of and administered the trust for the uses declared by the donors until Mexico, after her independence was achieved, succeeded to the administration of the trust. Finally, in 1842, President Santa Anna ordered the properties to be sold, that the proceeds thereof be incorporated into the national treasury, and that six per cent annual interest on the capitalization of the property should be paid and devoted to the carrying out of the intention of the donors in the conversion and civilization of the savages.
Upper California having been ceded to the United States in 1848 by the treaty of Guadalupe Hidalgo, the Mexican Government refused to pay to the prelates of the Church in Upper California any share of the interest which accrued after the ratification of the treaty. The latter presented their claims therefor to the Department of State and requested the interposition of the Government. A mixed commission for the settlement of the cross claims between the two Governments was formed under the Convention of July 4, 1868.1 On the presenta- tion and hearing of the claim the United States and Mexican commis- sioners divided in opinion. The case was accordingly referred to the umpire, Sir Edward Thornton, who rendered an award2 in favor of the United States for twenty-one annuities of $43,050.99 each, as the equitable proportion to which the prelates of Upper California were entitled of the interest accrued on the entire fund from the making of the treaty of peace down to February 2, 1869. The Mexican Govern- ment paid the award, but, asserting that the claim was extinguished, refused to make any further payments of interest for the benefit of the Church in Upper California. Again the prelates appealed to the
*Post, p. 12. zPost, p. 48.
I THE HAGUE COURT REPORTS
Department of State for support, and in 1898 active diplomatic dis- cussions between the two Governments as to the merits of the claim were begun and carried forward until they culminated, on May 22, 1902, in a formal agreement1 to refer the case to the determination of the Hague tribunal, to be composed of five members, none of whom were to be natives or citizens of the contracting Parties. Only two issues were presented by the protocol, namely: 1. Is the case, as a consequence of the decision of Sir Edward Thornton, within the gov- erning principle of res judicata? 2. Tf not, is the claim just? The tribunal was authorized to render whatever judgment might be found just and equitable.
As judges the United States selected Professor Martens of Russia and Sir Edward Fry of Great Britain; Mexico chose Dr. Asser and Jonkheer de Savornin Lohman of Holland; and these judges selected as president of the tribunal, Dr. Matzen of Denmark. All were mem- bers of the Permanent Court of Arbitration. The sessions of the tribunal began September 15, 1902, and ended October 1, 1902.
The material part of the unanimous award of the tribunal in favor of the United States, rendered on October 14, 1902, was as follows:
1. That the said claim of the United States of America for the benefit of the Archbishop of San Francisco and of the Bishop of Monterey is governed by the principle of res judicata by virtue of the arbitral sentence of Sir Edward Thornton, of November 11, 1875; amended by him, October 24, 1876.
2. That conformably to this arbitral sentence the Government of the Republic of the United Mexican States must pay to the Govern- ment of the United States of America the sum of $1,420,682.67 Mexi- can, in money having legal currency in Mexico, within the period fixed by Article 10 of the protocol of Washington of May 22, 1902.
This sum of $1,420,682.67 will totally extinguish the annuities ac- crued and not paid by the Government of the Mexican Republic — that is to say, the annuity of $43,050.99 Mexican from February 2, 1869, to February 2, 1902.
3. The Government of the Republic of the United Mexican States shall pay to the Government of the United States of America on February 2, 1903, and each following year on the same date of Feb- ruary 2, perpetually, the annuity of $43,050.99 Mexican, in money having legal currency in Mexico.2
*Post, p. 7. 2Post, p. 6.
THE PIOUS FUND CASE 3
AWARD OF THE TRIBUNAL
Award of the tribunal of arbitration constituted in virtue of the
protocol signed at Washington, May 22, 1902, between the United States and Mexico for the adjustment of certain conten-
tions arising under what is known as the "Pious Fund of the Californias" — The Hague, October 14,
The tribunal of arbitration constituted by virtue of the treaty concluded at Washington, May 22, 1902,2 between the United States of America and the United Mexican States :
Whereas, by a compromis (agreement of arbitration) prepared under the form of protocol between the United States of America and the United Mexican States, signed at Washington, May 22, 1902, it was agreed and determined that the differences which ex- isted between the United States of America and the United Mexican States, relative to the subject of the "Pious Fund of the Californias," the annuities of which were claimed by the United States of Amer- ica for the benefit of the Archbishop of San Francisco and the Bishop of Monterey, from the Government of the Mexican Repub- lic, should be submitted to a tribunal of arbitration, constituted upon the basis of the Convention for the pacific settlement of international disputes, signed at The Hague, July 29, 1899, which should be composed in the following manner, that is to say :
The President of the United States of America should designate two arbitrators (non-nationals), and the President of the United Mexican States equally two arbitrators (non-nationals) ; these four arbitrators should meet, September 1, 1902, at The Hague, for the purpose of nominating the umpire, who at the same time should be of right the president of the tribunal of arbitration.
Whereas the President of the United States of America named as arbitrators:
The Right Hon. Sir Edward Fry, LL.D., former member of the Court of Appeals, member of the Privy Council of His Britan- nic Majesty, member of the Permanent Court of Arbitration; and
His Excellency Mr. de Martens, LL.D., Privy Councilor, member of the Council of the Imperial Ministry of Foreign Affairs of Rus-
1 Report of Jackson H. Ralston, Agent of the United States and of Counsel, in the matter of the Case of the Pious Fund of the Californias, etc., pt. 1, p. 13. For the original French text, see Appendix, p. 429.
zPost, p. 7.
4 THE HAGUE COURT REPORTS
sia, member of the Institute of France, member of the Permanent Court of Arbitration.
Whereas the President of the United Mexican States named as arbitrators :
Mr. T. M. C. Asser, LL.D., member of the Council of State of the Netherlands, former professor at the University of Amsterdam, member of the Permanent Court of Arbitration; and
Jonkheer A. F. de Savornin Lohman, LL.D., former Minister of the Interior of the Netherlands, former professor at the Free University at Amsterdam, member of the second chamber of the States-General, member of the Permanent Court of Arbitration; which arbitrators at their meeting, September 1, 1902, elected, con- formably to Articles 32-34 of the Convention of The Hague of July 29, 1899, as umpire and president of right of the tribunal of arbitration ;
Mr. Henning Matzen, LL.D., professor at the University of Copenhagen, Counselor Extraordinary to the Supreme Court, Presi- dent of the Landsthing, member of the Permanent Court of Arbi- tration ; and
Whereas, by virtue of the protocol of Washington of May 22, 1902, the above-named arbitrators, united in tribunal of arbitration, were required to decide :
1. If the said claim of the United States of America for the benefit of the Archbishop of San Francisco and the Bishop of Monterey was within the governing principle of res judicata by virtue of the arbitral sentence of November 11, 1875, pronounced by Sir Edward Thornton, as umpire1 ;
2. If not, whether the said claim was just, with power to render such judgment as would seem to them just and equitable.
Whereas, the above-named arbitrators having examined with impartiality and care all the documents and papers presented to the tribunal of arbitration by the agents of the United States of America and of the United Mexican States, and having heard with the greatest attention the oral arguments presented before the tribunal by the agents and the counsel of the two parties in litiga- tion;
, p. 48.
THE PIOUS FUND CASE 5
Considering that the litigation submitted to the decision of the tribunal of arbitration consists in a conflict between the United States of America and the United Mexican States which can only be decided upon the basis of international treaties and the principles of international law;
Considering that the international treaties concluded from the year 1848 to the compromis of May 22, 1902, between the two Powers in litigation manifest the eminently international character of this conflict ;
Considering that all the parts of the judgment or the decree con- cerning the points debated in the litigation enlighten and mutually supplement each other, and that they all serve to render precise the meaning and the bearing of the dispositif (decisory part of the judg- ment) and to determine the points upon which there is res judicata and which thereafter can not be put in question;
Considering that this rule applies not only to the judgments of tribunals created by the State, but equally to arbitral sentences ren- dered within the limits of the jurisdiction fixed by the compromis;
Considering that this same principle should for a still stronger reason be applied to international arbitration;
Considering that the Convention of July 4, 1868,1 concluded be- tween the two States in litigation, had accorded to the mixed com- mission named by these States, as well as to the umpire to be even- tually designated, the right to pass upon their own jurisdiction;
Considering that in the litigation submitted to the decision of the tribunal of arbitration, by virtue of the compromis of May 22, 1902, there is not only identity of parties to the suit, but also identity of subject-matter, compared with the arbitral sentence of Sir Edward Thornton, as umpire, in 1875, and amended by him, October 24, 18762;
Considering that the Government of the United Mexican States conscientiously executed the arbitral sentence of 1875 and 1876 by paying the annuities adjudged by the umpire;
Considering that since 1869 thirty-three annuities have not been paid by the Government of the United Mexican States to the Gov- ernment of the United States of America, and that the rules of prescription, belonging exclusively to the domain of civil law, can
*Post, p. 12. *Post, p. 53.
O THE HAGUE COURT REPORTS
not be applied to the present dispute between the two States in litiga- tion;
Considering, so far as the money is concerned in which the annual payment should take place, that the silver dollar having legal cur- rency in Mexico, payment in gold can not be exacted except by virtue cf an express stipulation;
Considering that in the present instance such stipulation not ex- isting, the party defendant has the right to free itself by paying in silver; that with relation to this point the sentence of Sir Edward Thornton has not the force of res judicata, except for the twenty-one annuities with regard to which the umpire decided that the payment should take place in Mexican gold dollars, because question of the mode of payment does not relate to the basis of the right in litiga- tion, but only to the execution of the sentence ;
Considering that according to Article 10 of the protocol of Wash- ington of May 22, 1902, the present tribunal of arbitration must determine, in case of an award against the Republic of Mexico, in what money payment must take place ;
For these reasons the tribunal of arbitration decides and unani- mously pronounces as follows :
1. That the said claim of the United States of America for the benefit of the Archbishop of San Francisco and of the Bishop of Monterey is governed by the principle of res judicata by virtue of the arbitral sentence of Sir Edward Thornton, of November 11, 1875 ; amended by him, October 24, 1876.
2. That conformably to this arbitral sentence the Government of the Republic of the United Mexican States must pay to the Gov- ernment of the United States of America the sum of $1,420,682.67 Mexican, in money having legal currency in Mexico, within the period fixed by Article 10 of the protocol of Washington of May 22, 1902.
This sum of $1,420,682.67 will totally extinguish the annuities accrued and not paid by the Government of the Mexican Republic — that is to say, the annuity of $43,050.99 Mexican from February 2, 1869, to February 2, 1902.
3. The Government of the Republic of the United Mexican States shall pay to the Government of the United States of America on February 2, 1903, and each following year on the same date of
THE PIOUS FUND CASE /
February 2, perpetually, the annuity of $43,050.99 Mexican, in money having legal currency in Mexico.
Done at The Hague in the hotel of the Permanent Court of Arbi- tration in triplicate original, October 14, 1902.
HENNING MATZEN
EDW. FRY
MARTENS
T. M. C. ASSER
A. F. DE SAVORNIN LOHMAN
AGREEMENT FOR ARBITRATION
Protocol of an Agreement between the United States of America and the Republic of Mexico for the adjustment of certain contentions arising under what is known as the "Pious Fund of the Califor- nias" — Signed at Washington, May 22, 1902.*
Whereas, under and by virtue of the provisions of a convention entered into between the high contracting Parties above-named, of date July 4, 1868,2 and subsequent conventions supplementary thereto," there was submitted to the mixed commission provided for by said convention a certain claim advanced by and on behalf of the prelates of the Roman Catholic Church of California against the Republic of Mexico for an annual interest upon a certain fund known as "The Pious Fund of the Californias," which interest was said to have ac- crued between February 2, 1848, the date of the signature of the treaty of Guadalupe Hidalgo, and February 1, 1869, the date of the exchange of the ratifications of said convention above referred to; and
Whereas, said mixed commission, after considering said claim, the same being designated as No. 493 upon its docket, and entitled Thad- deus Amat, Roman Catholic Bishop of Monterey, a corporation sole, and Joseph S. Alemany, Roman Catholic Bishop of San Francisco, a corporation sole, against the Republic of Mexico, adjudged the same adversely to the Republic of Mexico and in favor of said claimants, and made an award thereon of nine hundred and four thousand, seven hundred and 99/100 (904,700.99) dollars; the same, as expressed in the findings of said court, being for twenty-one years' interest of the
1C7. S. Statutes at Large, vol. 32, p. 1916. For the Spanish text, see Appendix, p. 432.
zPost, p. 12.
8 Supplementary conventions not printed as they have no bearing on the Pious Fund Case.
8 THE HAGUE COURT REPORTS
annual amount of forty-three thousand and eighty and 99/100 (43,080.99) dollars upon seven hundred and eighteen thousand and sixteen and 50/100 (718,016.50) dollars, said award being in Mexican gold dollars, and the said amount of nine hundred and four thousand, seven hundred and 99/100 (904,700.99) dollars having been fully paid and discharged in accordance with the terms of said conventions ; and
Whereas, the United States of America on behalf of said Roman Catholic Bishops, above-named, and their successors in title and inter- est, have since such award claimed from Mexico further instalments of said interest, and have insisted that the said claim was conclusively established, and its amount fixed as against Mexico and in favor of said original claimants and their successors in title and interest under the said first-mentioned convention of 1868 by force of the said award as res judicata; and have further contended that apart from such former award their claim against Mexico was just, both of which propositions are controverted and denied by the Republic of Mexico, and the high contracting Parties hereto, animated by a strong desire that the dispute so arising may be amicably, satisfactorily and justly settled, have agreed to submit said controversy to the determination of arbitrators, who shall, unless otherwise herein expressed, be con- trolled by the provisions of the international Convention for the pacific settlement of international disputes, commonly known as the Hague Convention, and which arbitration shall have power to determine:
1. If said claim, as a consequence of the former decision, is within the governing principle of res judicata; and
2. If not, whether the same be just.
And to render such judgment or award as may be meet and proper under all the circumstances of the case.
It is therefore agreed by and between the United States of America, through their representative, John Hay, Secretary of State of the United States of America, and the Republic of Mexico, through its representative, Manuel de Azpiroz, Ambassador Extraordinary and Plenipotentiary to the United States of America for the Republic of Mexico as follows:
1
That the said contentions be referred to the special tribunal herein- after provided, for examination, determination and award.
THE PIOUS FUND CASE
The special tribunal hereby constituted shall consist of four arbitra- tors (two to be named by each of the high contracting Parties) and an umpire to be selected in accordance with the provisions of the Hague Convention. The arbitrators to be named hereunder shall be signified by each of the high contracting Parties to the other within sixty days after the date of this protocol. None of those so named shall be a native or citizen of the parties hereto. Judgment may be rendered by a majority of said court.
All vacancies occurring among the members of said court because of death, retirement or disability from any cause before a decision shall be reached, shall be filled in accordance with the method of ap- pointment of the member affected as provided by said Hague Con- vention, and if occurring after said court shall have first assembled, will authorize in the judgment of the court an extension of time for hearing or judgment, as the case may be, not exceeding thirty days.
All pleadings, testimony, proofs, arguments of counsel and findings or awards of commissioners or umpire, filed before or arrived at by the mixed commission above referred to, are to be placed in evidence before the court hereinbefore provided for, together with all corre- spondence between the two countries relating to the subject-matter involved in this arbitration; originals or copies thereof duly certified by the Departments of State of the high contracting Parties being presented to said new tribunal. Where printed books are referred to in evidence by either party, the party offering the same shall specify volume, edition and page of the portion desired to be read, and shall furnish the court in print the extracts relied upon ; their accuracy being attested by affidavit. If the original work is not already on file as a portion of the record of the former mixed commission, the book itself shall be placed at the disposal of the opposite party in the respective offices of the Secretary of State or of the Mexican Ambassador in Washington, as the case may be, thirty days before the meeting of the tribunal herein provided for.
4
Either party may demand from the other the discovery of any fact or of any document deemed to be or to contain material evidence for the party asking it; the document desired to be described with suffi-
10 THE HAGUE COURT REPORTS
cient accuracy for identification, and the demanded discovery shall be made by delivering a statement of the fact or by depositing a copy of such document (certified by its lawful custodian, if it be a public document, and verified as such by the possessor, if a private one), and the opposite party shall be given the opportunity to examine the original in the City of Washington at the Department of State, or at the office of the Mexican Ambassador, as the case may be. If notice of the desired discovery be given too late to be answered ten days before the tribunal herein provided for shall sit for hearing, then the answer desired thereto shall be filed with or documents produced before the court herein provided for as speedily as possible.
Any oral testimony additional to that in the record of the former arbitration may be taken by either party before any judge, or clerk of court of record, or any notary public, in the manner and with the precautions and conditions prescribed for that purpose in the rules of the joint commission of the United States of America, and the Re- public of Mexico, as ordered and adopted by that tribunal August 10, 1869, and so far as the same may be applicable. The testimony when reduced to writing, signed by the witness, and authenticated by the officer before whom the same is taken, shall be sealed up, addressed to the court constituted hereby, and deposited so sealed up in the Depart- ment of State of the United States, or in the Department of Foreign Relations of Mexico to be delivered to the court herein provided for when the same shall convene.
6
Within sixty days from the date hereof the United States of America, through their agent or counsel, shall prepare and furnish to the Department of State aforesaid, a memorial in print of the origin and amount of their claim, accompanied by references to printed books, and to such portions of the proofs or parts of the record of the former arbitration, as they rely on in support of their claim, deliver- ing copies of the same to the Embassy of the Republic of Mexico in Washington, for the use of the agent or counsel of Mexico.
Within forty days after the delivery thereof to the Mexican Em- bassy the agent or counsel for the Republic of Mexico shall deliver
THE PIOUS FUND CASE 11
to the Department of State of the United States of America in the same manner and with like references a statement of its allegations and grounds of opposition to said claim.
8
The provisions of paragraphs 6 and 7 shall not operate to' prevent the agents or counsel for the parties hereto from relying at the hearing or submission upon any documentary or other evidence which may have become open to their investigation and examination at a period subsequent to the times provided for service of memorial and answer.
The first meeting of the arbitral court hereinbefore provided for shall take place for the selection of an umpire on September 1, 1902, at The Hague in the quarters which may be provided for such purpose by the International Bureau at The Hague, constituted by virtue of the Hague Convention hereinbefore referred to, and for the com- mencement of its hearings September 15, 1902, is designated, or, if an umpire may not be selected by said date, then as soon as possible thereafter, and not later than October 15, 1902, at which time and place and at such other times as the court may set (and at Brussels if the court should determine not to sit at The Hague) explanations and arguments shall be heard or presented as the court may deter- mine, and the cause be submitted. The submission of all arguments, statements of facts, and documents shall be concluded within thirty days after the time provided for the meeting of the court for hearing (unless the court shall order an extension of not to exceed thirty days) and its decision and award announced within thirty days after such conclusion, and certified copies thereof delivered to the agents or counsel of the respective parties and forwarded to the Secretary of State of the United States and the Mexican Ambassador at Washing- ton, as well as filed with the Netherland Minister for Foreign Affairs.
10
Should the decision and award of the tribunal be against the Re- public of Mexico, the findings shall state the amount and in what cur- rency the same shall be payable, and shall be for such amount as under the contentions and evidence may be just. Such final award, if any, shall be paid to the Secretary of State of the United States of America within eight months from the date of its making.
12 THE HAGUE COURT REPORTS
11
The agents and counsel for the respective parties may stipulate for the admission of any facts, and such stipulation, duly signed, shall be accepted as proof thereof.
12
Each of the parties hereto shall pay its own expenses, and one-half of the expenses of the arbitration, including the pay of the arbitrators ; but such costs shall not constitute any part of the judgment.
13
Revision shall be permitted as provided in Article 55 of the Hague Convention, demand for revision being made within eight days after announcement of the award. Proofs upon such demand shall be sub- mitted within ten days after revision be allowed (revision only being granted, if at all, within five days after demand therefor) and counter- proofs within the following ten days, unless further time be granted by the court. Arguments shall be submitted within ten days after the presentation of all proofs, and a judgment or award given within ten days thereafter. All provisions applicable to the original judgment or award shall apply as far as possible to the judgment or award on re- vision. Provided, that all proceedings on revision shall be in the French language.
14
The award ultimately given hereunder shall be final and conclusive as to the matters presented for consideration.
Done in duplicate in English and Spanish at Washington, this 22d day of May, A. D. 1902.
JOHN HAY [SEAL] M. DE AZPIROZ [SEAL]
ADDITIONAL DOCUMENTS
Convention between the United States of America and the Republic of Mexico for the Adjustment of Claims. — Concluded July 4, 1868*
Whereas it is desirable to maintain and increase the friendly feel- ings between the United States and the Mexican Republic, and so to
1C7. .9. Statutes at Large, vol. IS, p. 679.
THE PIOUS FUND CASE 13
strengthen the system and principles of Republican Government on the American Continent; and whereas since the signature of the Treaty of Guadalupe Hidalgo of the 2d of February, 1848, claims and complaints have been made by citizens of the United States, on account of injuries to their persons and their property by authorities of that Republic, and similar claims and complaints have been made on account of injuries to the persons and property of Mexican citizens by authorities of the United States, the President of the United States of America and the President of the Mexican Republic have resolved to conclude a Convention for the adjustment of the said claims and complaints and have named as their plenipotentiaries:
The President of the United States, William H. Seward, Secretary of State;
And the President of the Mexican Republic, Matias Romero, ac- credited as Envoy Extraordinary and Minister Plenipotentiary of the Mexican Republic to the United States; who, after having communi- cated to each other their respective full powers, found in good and due form, have agreed to the following articles:
ARTICLE 1
All claims on the part of corporations, companies or private indi- viduals, citizens of the United States, upon the government of the Mexican Republic, arising from injuries to their persons or property by authorities of the Mexican Republic, and all claims on the part of corporations, companies or private individuals, citizens of the Mexican Republic, upon the government of the United States, arising from injuries to their persons or property by authorities of the United States, which may have been presented to either government for its interposition with the other since the signature of the Treaty of Guadalupe Hidalgo between the United States and the Mexican Re- public of the 2d of February, 1848, and which yet remain unsettled, as well as any other such claims which may be presented within the time hereinafter specified, shall be referred to two commissioners, one to be appointed by the President of the United States by and with the advice and consent of the Senate, and one by the President of the Mexican Republic. In case of the death, absence or incapacity of either commissioner, or in the event of either commissioner omitting or ceasing to act as such, the President of the United States or the President of the Mexican Republic respectively shall forthwith name another person to act as commissioner in the place or stead of the commissioner originally named.
14 THE HAGUE COURT REPORTS
The commissioners so named, shall meet at Washington within six months after the exchange of the ratifications of this Convention, and shall, before proceeding to business, make and subscribe a solemn declaration that they will impartially and carefully examine and decide, to the best of their judgment, and according to public law, justice and equity, without fear, favor or affection to their own country, upon all such claims above specified as shall be laid before them on the part of the Governments of the United States and of the Mexican Republic respectively; and such declaration shall be entered on the record of their proceedings.
The commissioners shall then name some third person to act as an umpire in any case or cases on which they may themselves differ in opinion. If they should not be able to agree upon the name of such third person, they shall each name a person, and in each and every case in which the commissioners may differ in opinion as to the deci- sion which they ought to give, it shall be determined by lot which of the two persons so named shall be umpire in that particular case. The person or persons so to be chosen to be umpire shall, before proceed- ing to act as such in any case, make and subscribe a solemn declaration in a form similar to that which shall already have been made and sub- scribed by the commissioners, which shall be entered on the record of their proceedings. In the event of the death, absence, or incapacity of such person or persons, or of his or their omitting, or declining, or ceasing to act as such umpire, another and different person shall be named, as aforesaid, to act as such umpire, in the place of the person so originally named, as aforesaid, and shall make and subscribe such declaration, as aforesaid.
ARTICLE 2
The commissioners shall then conjointly proceed to the investigation and decision of the claims which shall be presented to their notice, in such order and in such manner as they may conjointly think proper, but upon such evidence or information only as shall be furnished by or on behalf of their respective governments. They shall be bound to receive and peruse all written documents or statements which may be presented to them by or on behalf of their respective governments in support of or in answer to any claim, and to hear, if required, one person on each side on behalf of each government on each and every separate claim. Should they fail to agree in opinion upon any indi- vidual claim, they shall call to their assistance the umpire whom they may have agreed to name, or who may be determined by lot, as the
THE PIOUS FUND CASE 15
case may be; and such umpire, after having examined the evidence adduced for and against the claim, and after having heard, if required, one person on each side as aforesaid, and consulted with the commis- sioners, shall decide thereupon finally and without appeal. The deci- sion of the commissioners and of the umpire shall be given upon each claim in writing, shall designate whether any sum which may be allowed shall be payable in gold or in the currency of the United States, and shall be signed by them respectively. It shall be competent for each government to name one person to attend the commissioners as agent on its behalf, to present and support claims on its behalf, and to answer claims made upon it, and to represent it generally in all matters connected with the investigation and decision thereof.
The President of the United States of America and the President of the Mexican Republic hereby solemnly and sincerely engage to con- sider the decision of the commissioners conjointly or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him respectively, and to give full effect to such decisions without any objection, evasion, or delay whatsoever.
It is agreed that no claim arising out of a transaction of a date prior to the 2d of February, 1848, shall be admissible under this convention.
ARTICLE 3
Every claim shall be presented to the commissioners within eight months from the day of their first meeting, unless in any case where reasons for delay shall be established to the satisfaction of the com- missioners, or of the umpire in the event of the commissioners differ- ing in opinion thereupon, and then and in any such case the period for presenting the claim may be extended to any time not exceeding three months longer.
The commissioners shall be bound to examine and decide upon every claim within two years and six months from the day of their first meeting. It shall be competent for the commissioners conjointly, or for the umpire if they differ, to decide in each case whether any claim has or has not been duly made, preferred and laid before them, either wholly or to any and what extent, according to the true intent and meaning of this Convention.
ARTICLE 4
When decisions shall have been made by the commissioners and the arbiter in every case which shall have been laid before them, the total
16 THE HAGUE COURT REPORTS
amount awarded in all the cases decided in favor of the citizens of the one party shall be deducted from the total amount awarded to the citizens of the other party, and the balance, to the amount of three hundred thousand dollars, shall be paid at the city of Mexico or at the city of Washington, in gold or its equivalent, within twelve months from the close of the commission, to the government in favor of whose citizens the greater amount may have been awarded, without interest or any other deduction than that specified in Article 6 of this Conven- tion. The residue of the said balance shall be paid in annual instal- ments to an amount not exceeding three hundred thousand dollars, in gold or its equivalent, in any one year until the whole shall have been paid.
ARTICLE 5
The high contracting Parties agree to consider the result of the pro- ceedings of this commission as a full, perfect, and final settlement of every claim upon either government arising out of any transaction of a date prior to the exchange of the ratifications of the present Con- vention; and further engage that every such claim, whether or not the same may have been presented to the notice of, made, preferred, or laid before the said commission, shall, from and after the conclu- sion of the proceedings of the said commission, be considered and treated as finally settled, barred, and thenceforth inadmissible.
ARTICLE 6
The commissioners and the umpire shall keep an accurate record and correct minutes of their proceedings, with the dates. For that purpose they shall appoint two secretaries versed in the language of both countries to assist them in the transaction of the business of the commission. Each government shall pay to its commissioner an amount of salary not exceeding forty-five hundred dollars a year in the currency of the United States, which amount shall be the same for both governments. The amount of compensation to be paid to the umpire shall be determined by mutual consent at the close of the com- mission, but necessary and reasonable advances may be made by each government upon the joint recommendation of the commission. The salary of the secretaries shall not exceed the sum of twenty-five hun- dred dollars a year in the currency of the United States. The whole expenses of the commission, including contingent expenses, shall be defrayed by a ratable deduction on the amount of the sums awarded by the commission, provided always, that such deduction shall not ex-
THE PIOUS FUND CASE 17
ceed five per cent on the sums so awarded. The deficiency, if any, shall be defrayed in moieties by the two governments.
ARTICLE 7
The present Convention shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by the President of the Mexican Republic with the ap- probation of the Congress of that Republic, and the ratifications shall be exchanged at Washington within nine months from the date hereof, or sooner if possible.
In witness whereof the respective plenipotentiaries have signed the same and have affixed thereto the seals of their arms.
Done at Washington, the fourth day of July, in the year of our Lord one thousand eight hundred and sixty-eight.
WILLIAM H. SEWARD [L. S.] M. ROMERO [L. S.]
Opinion of Mr. Wadsworth, in the original Pious Fund Case before the United States and Mexican Claims Commission of i868.1
The commissioners having differed in opinion in this case, Mr. Com- missioner Wadsworth delivered the following opinion:
The "Pious Fund of the Calif ornias," was founded by a private charity, in aid of Christian missions in the Californias, Lower and Upper, for the purpose of spreading amongst their savage inhabitants the gospel according to the tenets of the Roman Catholic Church. The objects sought and pointed out by the founders, were exclusively charitable and religious, and not political.
They devoted their gifts to the conversion of the heathen in those territories for the glory of God, as they supposed, and not for the aggrandizement of the State. The latter was to be incidentally bene- fited by these missionary labors, but this, certainly, did not enter into the thoughts of the zealous men and women who disinherited their own heirs, for the sake of the savages of the Californias.
The fund never did, and does not now belong to the State, and the latter, be it said to its credit, never at any time claimed it, or avowed a purpose to divert it from the direction given it by its founders.
^United States and Mexican Claims Commission, Opinions (MS. Dep't of State), vol. v, p. 84.
18 THE HAGUE COURT REPORTS
Plainly enough, in the beginning, it was to be devoted in aid of a Roman Catholic Missionary Church in the Californias, under the ex- clusive control of the Jesuit fathers, for the spread of the Catholic faith amongst the inhabitants of these lands. Accordingly, the fund was continuously controlled and administered by the Jesuits, as its appointed trustees, until their expulsion from New Spain. When this took place, there was no longer any trustee to administer the fund. But equity never suffers a trust to fail for the want of a trustee, and under these circumstances, the sovereign, who by one of those useful fictions is held to be a fountain of justice and a sort of inner sanctuary of equity, took the place of the trustees whom he had extinguished, until he again provided for the more appropriate administration of the fund by the hands of the head of the Missionary Church of the Cali- fornias, who was at once president of the mission and Bishop of the Diocese, and when finally, the Mexican Government again took pos- session of the fund, under the decree of October 24, 1842, it took and held it as a trustee, as the decree of February 8, 1842, declared, "to fulfil the purpose proposed by the donor in the civilization and con- version of the savages," of the Californias. And the decree of October 24, 1842, declared that the action of the Government in resuming the administration was "intended to fulfil most faithfully the objects de- signed by the founders." This act calls it the "Pious Fund of the Californias," and with no propriety can it be called in any sense a political fund, unless it is intended thereby to affirm that the State at the time considered the spread of the Christian religion, under the direction of the Church, a national or political affair.
I think it therefore plain that by the decree of October 1842, the fund was still to be devoted to the aid of the missionary labors of the same Church in the Californias, and that its annual income was to be expended by that Church for missionary purposes in the Californias ; that is, for the conversion of the heathen. This is what the decrees of the Government mean, if we are to give them any reading consist- ent with honesty and good faith; and we are not at liberty to give them any other. The State then became a mere trustee of funds, pro- vided by private charity, to be expended for missionary purposes in a particular field of labor, under the direction of a particular religious organization: it should punctually pay the annual income to this re- ligious organization, to be expended in the work of converting the heathen of the two Californias, for I think it is evident that the Cali- fornias are still full of heathen, and that the number has increased on
THE PIOUS FUND CASE 19
the whole, since in addition to the autochthones and the Europeans dwelling there, Asia has contributed the "Heathen Chinese."
If a private individual held the fund the courts would compel him to pay the interest to the Church, which, although its missions have been abolished as organized by its priests, the Jesuits, still labors in that missionary field for the conversion of the savages. Nothing else can be done with the fund to carry out the object of the founders, and this is so near, and indeed so nearly identical with the ancient charity, that it is not necessary to frame a scheme for its administration.
The question then is how shall the income of the fund be appor- tioned between the two Californias, and what does it amount to in the aggregate,
It is claimed in the argument of the agent of Mexico, indeed, that the Upper California lost all interest in the fund by reason of the cession to the United States of that territory, but I can not perceive how this fact can change the direction given to the fund by the found- ers. If both the Californias had been ceded to the United States, would the beneficiaries have lost all interest in the fund provided by private zeal for their conversion? This was not claimed when Spain lost the Californias, or when the Philippine Islands claimed a share in the fund, and I do not see how it can affect the fund at all. The cession did not affect civil rights, or the interests of private property. Whether the estate was legal or equitable, an inhabitant of Upper California, having an estate or interest in property situated in Mexico, or a fund located there, had the same estate or interest after cession as before. It is also an error to hold that the cession dissolved cor- porations before created by the laws of the territory, whether these were sole or aggregate, public or private, lay or ecclesiastical.
I am clearly of opinion, that whatever right or interest in the fund pertained to the Church in Upper California in aid of its missionary work before, remained to it after the cession, unaffected and unim- paired.
The Californias were entitled to the benefits of the whole fund to be expended by the Church laboring in that field, first under the Jesuits and after their expulsion, under such other priests or officers of the same faith as the Church might authorize, and the State tolerate.
When it becomes necessary to divide the income, and to set apart the proportion to be expended in each of the Californias, how shall this income be divided? In my opinion it must be divided; that is, each of the Californias, must take a moiety. I do not know how else
20 THE HAGUE COURT REPORTS
to apportion it, and do not see any fact calling for a different division. If we look at the population of each territory at the time of the ces- sion, we discover no great disparity. Besides, I do not conceive that because a charitable fund is to be devoted to missionary work in two districts of country, that this gives an interest to each in proportion to population. On the contrary, when it became necessary to divide the bequest made by Dona Juefa Paula de Argiielles to the missions in China and New Spain, the courts divided it equally between the Philippine Islands and New Spain, the population being ignored.
I take the report of Pedro Ramirez, of February 28, 1842, upon the condition of the fund made to Ignacio de Cubas (Exhibit A to the deposition of Jose Maria de Romo Jesus) as a sufficiently accurate and satisfactory account.
According to this, the Government at that date owed the fund the sum of
$1,082,078.00 But deduct a bad debt 7,000.00
Leaves in the Treasury balance $1,075.078.00
Individuals owed the fund $118,739.00
Bad debts off 46,617.00
72,122.00
Rent of the estate of Ibarra $2,000.00
Rent of Nos. 11 & 12 Tergara St. 2,625.00 Three estates rented to Senor
Belauzaran for 12,705.00
Total rents $17,330.00
Equal at six per cent to a capital of 288,833.00
Total of the fund $1,436,033.00
It will be seen, that I take no account of the Estate of Cienega del Pastor, because it was attached and held by Senor Jauregui for a large debt, and there is no evidence in this record, that the Government ever obtained the property, or derived any benefit from it.
By the decree of October 24, 1842, the public treasury acknowledged an indebtedness to the "Pious Fund of the Californias," of six per cent per annum, on the total proceeds of the sales, and pledged the revenues from the tobacco for the payment of the income. This pledge was never kept, but the revenue from the tobacco was otherwise ap- propriated by the Government. Nevertheless, there is an acknowl-
THE PIOUS FUND CASE 21
edged indebtedness of six per cent on the capital of the fund payable annually. This amounts to the sum of $86,161.98 and the first instal- ment was due October 24, 1848, for which, according to my views, claimants can have any award here, and the last instalment fell due October 24, 1868, because the next falling due after February, 1869, can not be awarded by this commission.
This gives for twenty-one years, a grand total of $1,809,401.58, one moiety of which belongs to claimants to be used in aid of the mission- ary labors of the Church in Upper California, for the conversion of the heathen.
The beneficiaries of this moiety of the fund are in Upper Cali- fornia, citizens of the United States by the treaty of cession. They can not receive the benefit of the fund according to the will of the founders, except through the ministry of the Roman Catholic Church in Upper California, empowered by the Church at Rome to preach, convert and baptize the heathen of that land. But as the Roman Catholic ecclesiastical corporations sole and the beneficiaries of the fund are there, and all [are] citizens of the United States by the treaty of cession and the law of the place, and as the United States appears before this commission claiming redress for and on behalf of "the Roman Catholic Church of the State of California and of its clergy, laity and all persons actually or potentially within its fold and entitled to its ministration, and all others beneficially interested in the trust estate," we have before us undoubtedly all persons interested in the fund ; and as the award is made to the United States, that Power will be responsible for the proper disbursement of the sum received; and its courts of justice will not ask our leave to settle and adjust the rights of all parties claiming, or to claim the same.
I see therefore no difficulty in the way of awarding to the United States whatever sum may be justly due from the Government of Mexico since the date of the treaty of cession. Certainly justice and equity call loudly on the Mexican Government to pay according to its pledged faith.
The annual income of the "Pious Fund of the Californias," to the Ministers responsible for its faithful disbursement in the Californias, for the conversion of their inhabitants, according to the will of the pious founders. The fund does not belong to the Government of Mexico, not a dollar of it. It is private property sacredly devoted, by the piety of a past age, to Christian charity, and fortified against political spoliation by all the sanctions of religion and all the obliga- tions of good faith.
22 THE HAGUE COURT REPORTS
But the magnitude of the labors of this commission will not allow me time to go into the further discussion of this interesting and im- portant case. I must content myself with the declaration of my pur- pose to respect the wishes of the pious people of the olden times, with reference to their own property, devoted according to the laws then in force, to objects of their own selection.
It is my decision, that the Government of Mexico pay to that of the United States, in the gold coin of the latter, with interest at the rate of six per cent per annum, from the 24th of October, 1868, to the close of the labors of this commission, for and on behalf of the claim- ants, the sum of nine hundred and four thousand and seven hundred dollars, and seventy-nine cents ($904,700.79) and $100 for printing and proofs.
Opinion of Mr. Zamacona, in the original Pious Fund Case before the United States and Mexican Claims Commission of 1868*
The commissioners having differed in opinion in this case, Mr. Com- missioner Zamacona delivered the following opinion:
The question raised by these claimants has a certain aspect of his- torical investigation, for it is impossible that persons versed in the history of the conquest of Mexico who know the system and means employed by the Government of Spain to carry that great undertaking to its completion, should be unacquainted with the national and strictly Mexican character of the resources which the Bishops of Upper Cali- fornia claim as if they were an appendage of that province, transmis- sible by virtue of the treaty by which it was ceded to the United States. At times an incorrect denomination is the cause of transcendental er- rors. That is the case with the phrase employed to designate the ele- ments with which the Spaniards carried out the conquest of certain territories situated on the northwest of Mexico. With an impropriety, of which the spirit of the epoch is the explanation, those resources were called "The Pious Fund of California" (el fondo piadoso de California) and this must have been one of the principal causes of the errors which the present claim involves, and which consists [sic] in the claimants, believing that the constituent elements of that fund, so-called, belongs, notwithstanding its national character, its many transformations and its dilution, so to say, in the treasury of Mexico, to the Catholic Church of Upper California.
*United States and .Mexican Claims Commission, Opinions (MS. Dep't of State), vol. v, p. 90.
THE PIOUS FUND CASE 23
The conquest of that country and of the Peninsula which is still retained by Mexico under the name of Lower California was under- taken by the Spanish Government with the same means by which the extension of its conquest in America was accomplished. The first acts of occupation and possession performed by the delegates of the mon- arch used to have the form of material acts supported by arms; but at a later time, there irradiated from that nucleus in which the Spanish flag had been planted, expeditions, apparently of a religious character, which were nothing more than a complement of conquest of little cost in money or blood. It passes for a proverb among those who have profitably studied the conquest of New Spain, that the history of that important event can only be found in the chronicles of the convents, and mention is made even of the various religious orders which re- spectively and successively conquered the provinces of Mexico. To the end of carrying the authority of the Spanish Government to the northwestern end of the country, the same method was applied, with this difference, that a more marked and prominent part was assigned to the priests charged with making the reduction (la rcducaon). The use of this term suggests an observation which ought not to be omitted, namely, that the aspect, in a certain way political, of the labors of the missionaries in Mexico is reflected upon even the locutions used to express their work, and that the tendency of this work was not less to conquer souls for the Catholic faith than subjects for the monarchs of Spain.
The Jesuits took this undertaking under their charge in regard to the Calif ornias; their order had acquired a great development in the Spanish Colonies of America and represented not only a great and religious power, but a great monetary power. At a certain time, cor- porations of that kind, not only in Mexico, but even in Spain, united to the functions of agents of the political power those of institutions of credit, and they were soon to distribute the capital they had ac- cumulated, thanks to their great influence over the consciences, not only in the sphere of industry but in that of Government.
The Government of Spain had little means when the conquest of the Calif ornias was planned. Some attempts had been made in that direc- tion by means of naval expeditions, but without result, and the vice- roys of New Spain decided to avail themselves of the opportunity of- fered them by the Jesuits who were willing to take upon themselves continuation of the work and the raising of the means required by it. The acceptance of this offer is the starting point of the missions of
24 THE HAGUE COURT REPORTS
Lower California and the explanatory key with which their true char- acter can be disclosed.
Here we meet with another term which may mislead such as are only acquainted with what is generally designated with the name of missions, and especially the missions organized in this country by some religious or benevolent societies. Reflecting upon the same his- tory which the claimants give us of the missions of California, it must be recognized that they were institutions of an anomalous and equivocal character, and that in them civil, military and political aspect predominated over the religious. Further on we shall have occasion to demonstrate this; for the moment it suffices to say that the solici- tude of the Jesuits and their arrangements calculated to extend the influence and labors of their order to California were all with the Government of Mexico, that they implied the mission of making a conquest for the Spanish metropolis, and that the acts and practical means being required to conform to this point of departure, the said Jesuits presented themselves in Lower California less as apostles than as delegates of the Government, invested with political and military powers and with such prerogatives in the matter of administration and war as were far from complying with the simple character of mis- sionaries.
In furtherance of that arrangement the Jesuits obtained impor- tant donations for the enterprise which the Government of the Vice- roy had intrusted to them, and with the consent of the latter they ad- ministered and invested the means thus obtained.
That was the condition of things until the Society of Jesus was ex- pulsed from the Spanish dominions and at a later time extinguished, there being marked, as we shall see further on, during all this initial period of the missions, two circumstances which are very important for the decision of this case.
1st. The military, political and administrative functions performed by the missionaries.
2d. Their dependency on the Spanish Government and of its dele- gates sent to Mexico and known by the name of viceroys.
The Jesuits once expulsed and extinguished and their temporal con- cerns occupied, everything relating to the missions of California came into the hands of the Government, not only by virtue of its rights but because the circumstances did not permit to act otherwise.
The Government was the only one who could substitute those priests in the administration of the institutions which had been founded in California and of the means intended for their maintenance. The
THE PIOUS FUND CASE 25
claimants who, casting a retrospective glance on the acts of the civil power in regard to the missions in question, censure very ancient transactions which neither they nor we are called upon to qualify, do not take notice that independently of the right, the interest of civiliza- tion and order required that the Government of Mexico should sub- stitute itself in the place of the extinguished Jesuits in regard to the establishment to which the case refers.
So it happened, and the Colonial Government of Mexico, without contradiction, without claim on the part of the ecclesiastical author- ity, took entire control of the missions of California, so-called, and put them in charge of other religious orders.
The latter assumed the management of them, and acknowledged by many acts the mandate and the delegation on the part of the civil power. It is to be observed that in the keeping of the missions, after they were founded, the private donations were confounded, although not in equal proportions with the subsidies of the Government, and that the expenses required by them were considered as a burden of the public treasury.
When Mexico conquered her independence things continued on the same footing, and the executive and legislative power of the Republic continued without contradiction to arrange everything relating to the establishment founded in California. The position in which the Gov- ernment of Mexico was in regard to that power, received even the sanction of some judicial decisions given in cases relative to some of the most important legacies made in favor of the missions. In said decisions not only the interest belonging to the mission was deter- mined, but it was also declared that that interest remained at the dis- posal of the Government (see document 36, page 61).
The administration of the fund in dispute sustained many changes since the end of the war of independence in Mexico, until the treaty of peace with the United States was concluded in 1848. Religious corporations, officers appointed by the authorities, boards of a lay character also appointed by the Government, and, finally, the Epis- copal prelate of the Calif ornias converted into a bishopric, had in suc- cession the administration of said fund, but in all the phases of that administration the supremacy and superior authority of the Govern- ment was recognized.
The reference just made to the bishopric established in California in 1836, brings to the memory of the undersigned a circumstance very
iNot printed.
26 1HE HAGUE COURT REPORTS
important for the decision of this case. As will be seen further on, since the conquest of the Californias was undertaken, when the fund of the missions was consolidated, when its administration was, in some cases, modified, when the bishopric was erected, and especially when the latter occurrence took place, it was given to understand by the missionaries, by the donors, by the Government, and even by the Bishop, when he made some complaints in regard to the Pious Fund, that the missions, their dotation, their arrangement, their administra- tion, had among other objects that of protecting the possession of the Californias, first for the Crown of Spain and then for the Republic of Mexico, against the progressive danger arising from the vicinity of the United States. It is proper to observe here by the way, without prejudice to a more ample elucidation of this point, that it would be an absurdity to pretend, as these claimants do, that the ele- ments which the Mexican Government employed to avoid the loss of Upper California should now be transferred to a society subsequently organized in the country by which that province was conquered.
It would be almost the same as if Russia [sic.] should keep France perpetually bound to pay the expenses of the fortifications which the latter nation vainly erected in Alsace and Lorraine for the defense of those provinces. Now again to the history of the fund. After the Government of Mexico placed it for its administration in the hands of the bishop who had been created by it, it withdrew from him such a commission, and, finally, the incorporation of the fund in the national treasury was decreed. At the same time it was ordered that a sum amounting to six per cent of the incorporated property should be an- nually applied to the objects for which the said fund had been estab- lished. Some of the estates in which the fund consisted were alien- ated, by virtue of said order, in favor of individuals. Subsequently, when, in consequence of one of the changes so frequent at that time in the Mexican politics, the spirit of the Government changed, it was decreed that the sale of said property should be stopped, and that that which still remained unsold should be delivered back to the Bishop of California.
This property must have been very small, because, as will be seen in the course of this opinion, the so-called Pious Fund of California had for a long time, and especially during the war for independence, sustained great and progressive detriments. The war with the United States came soon after the last-mentioned measures were taken. A portion of the Californias was occupied by the American Government even before the treaty of Guadalupe was concluded. By this treaty
THE PIOUS FUND CASE 27
Mexico ceded the territory of which she had already been dispossessed. The Mexican Bishopric of the two Californias ceased to exist, as also the local interests which the Government, seconded by the Church, had promoted in that part of the Republic, and things continued in the same condition after the peace with the United States was concluded. Now an ecclesiastical corporation newly organized in Upper Cali- fornia, in the bosom of the American nationality, in conformity with the laws of one of its States, in short, the Catholic Association of Upper California represented by its bishops (some of whom are of recent creation) pretend that Mexico should pay to them the interests of the so-called "Pious Fund," estimating them at their pleasure, and deducting only an insignificant fraction for the sake of the rights recognized in the Catholics of Lower California; in order to estab- lish such a claim before us, the facts, or to say better, their character has been adulterated in the memorial. This adulteration may not be intentional, but can not fail to be noticed by any one who has read the documents in this case. The fund whose interests are claimed is de- scribed in the memorial as a foundation made for the precise and ex- clusive purpose of supporting the Catholic Church of the Californias, and everything is omitted which refers to the civil and political objects which presided over the first mission sent and the collection of the resources necessary for their sustenance.
In treating of the part which the Mexican Government took in the administration of those resources the real condition of things is in- verted, because that Government is represented as possessor and ad- ministrator in the name of the Church, when the opposite is a truth which reflects on every part of the transaction, above all after the ex- pulsion of the Jesuits. It was not the Mexican Government who re- ceived the funds in question from the Fernandinos and Dominicans and from the Bishop Garcia Diego to attend to their keeping and administration; on the contrary, those religious orders and that pre- late took under their charge said administration as delegates of the Government of Mexico, who at certain times placed it in the hands of corporations and functionaries strictly civil. Upon the basis of this false precedent, the incorporation in the national treasury as ordered and carried into effect in the year '42 is described as a wrongful act by which the Government substituted itself, authoritatively and ar- bitrarily, in the place of the Bishop of California, and all is disre- garded that relates to the antecedents showing the civil and political interest connected with the missions and their fund and with the views of the Government, of the donors and even of the Church; views
28 THE HAGUE COURT REPORTS
which were not confined to definite localities, but referred, as will be seen further on, to the conquest of provinces distant from California.
It is, then, easy to see what ratification the incorrect history made of this affair in the memorial requires. It is necessary to repeat that the undertaking of the first missionaries in California was more of the Government than of the Church ; that the persons of whom dona- tions were obtained made them for establishments already founded for the principal and known purpose of continuing and consolidating the Spanish conquests in the northwestern part of Mexico, that the funds donated were originally placed in charge of the Jesuits, who had ample freedom of administration and were exempt from giving ac- counts; and that after the expulsion and extinction of that order, the Spanish Government first, and that of Mexico afterwards, substituted themselves in the place of the Jesuits. The fact that they had, dur- ing a certain period, their functions delegated in the monks of San Fernando and Santo Domingo and in the Bishop of California, does not take from the institutions or the interests connected with them what they have of national and civil [sic] ; nor was that fact ever re- garded by the religious orders and the Bishop in Mexico as a proof that they possessed and administered in their own right.
We also notice in the claimants' memorial a certain tendency to ap- preciate, to censure and to claim, in regard to former acts of the Spanish and Mexican Governments, without knowing that whatever the character and importance of those acts may have been, they can not constitute a proper subject for reclamation, as their date is an- terior to the treaty of Guadalupe, by which Mexico and the United States agreed to consider all their national claims as settled. [Sic.] Whatever may be the measures by which in \sic] the position to which its original intervention in the organization of the missions and its substitution in the place of the Jesuits entitled it, this is not a proper subject to be submitted to discussion before us. The logical and legal starting-point from which to appreciate the rights alleged by these claimants is the condition of things at the time when the treaty of Guadalupe was concluded.
That situation implied a supreme power greater, as to the adminis- tration and investment of funds, than that which the Jesuits had exercised. The Mexican Government always showed great respect towards the will of those who bequeathed property for the reduc- tion of the natives in the western part of Mexico. And there is no reason why the said Government, placed as it is in the same place which the first missionaries occupied, could not claim, with the same
THE PIOUS FUND CASE 29
right, that it is exempt, in conformity with the will of the donors, from the obligation of giving account in regard to the administration and investment of the fund to which the present case refers.
The question raised by the claimants is not a question of facts. They really agree with the advocate of Mexico in the history of the affair and apply to the same sources to establish the precedents of the case. They only differ in regard to certain secondary points and as to the flattering calculations about the importance of the funds the interests of which are claimed by these prelates. The question, there- fore, consists in the appreciation of facts in which the two interested parties agree, or to say better, in the philosophy of the history related by both.
In that history Mexico sees the antecedents of an affair in which the civil and political character prevails, whereas the present Bishops of California do not see in all that relates to the missions maintained there by the Spanish and Mexican Governments anything else than a work essentially and exclusively religious and an interest of a local character connected, by an indissoluble and perpetual bond, with the dignitaries of the Catholic Church in those regions.
After a little reflection we can see how incorrect that judgment of the claimants is, and that in the foundation, organization of re- sources and administration in question there is much more of a temporal than of a spiritual and religious character; much more of national and Mexican than of a philanthropic or local interest.
Two circumstances have led the claimants into error, which ought to be taken in consideration by him does not want to make, as they do, false appreciations.
One of them which has been already pointed out refers to the re- ligious means used by the Spanish Government to colonize and extend its dominions. Without bearing in mind this undeniable fact we run the risk of regarding the conquest and colonization of the Spanish America, but as a spiritual work in which the political power of the monarchs of Spain becomes eclipsed before the activity and apostolical zeal of the missionaries. It is not necessary to repeat that at the time, and especially in the countries treated of here, the preaching and propagation of the faith was inter instrumenta regni with this cir- cumstance is connected the one of which we spoke before, and which refers to that kind of solidarity between Church and State which ex- isted in Mexico under the Colonial Government, and a long time after that country became independent.
30 THE HAGUE COURT REPORTS
This can not be easily understood by those who profess and prac- tice the religious theory which recognizes Christ only as the head of the Church; but in some Catholic and monarchial countries in the eighteenth century there was, besides the visible head represented by the pope, a certain ecclesiastical and spiritual authority invested in the temporal sovereigns, and to the exercise of this authority correspond the prerogatives which the Spanish King defended with so great a zeal and which the Government of Mexico inherited and enjoyed for some time under the name of royalty. From the two facts just men- tioned two consequences are derived which are very material in this case.
1st. That it was very easy at that time, owing to the duality of func- tions which the civil power performed, to take as acts and work of a religious character much that was done in the exercise of the political and temporal power.
2d. That the Spanish as well as the Mexican Catholic Church were of a national character, from which it follows that even if it be proved that the missions of California, their dotation and administration were within the sphere of the Church, it could not be claimed, as these claimants do, that the present American Catholic Church of Upper California is the heiress and continuator of the Mexican Catholic Church.
This idea will be developed further on, when we shall demonstrate that in the institution and in the resources to which this case refers not only the temporal interest prevailed, but the material also. It will, however, be well to state now in corroboration of what has just been said, that when Mexico was mutilated by the separation of Upper California, the system was still in force there according to which the first magistrate of the nation was a functionary of the religious order who intervened in the appointment of bishops, who exercised a kind of veto in regard to the ecclesiastical laws, and who, in short, was in a thousand ways incorporated in the administration of the Catholic Society. The latter having been essentially Mexican in Mexico, it must be recognized that when the political power of that country sus- tained the loss imposed by the treaty of Guadalupe, a similar loss was suffered by the Catholic Church of Mexico, and that as the Govern- ment withdrew from California, New Mexico and Texas, so the Catholic Church of the Republic also withdrew carrying with it its own elements of life and development.
This, which is natural, is proved by some facts brought to our knowledge by the claimants themselves, such as the reconstruction
THE PIOUS FUND CASE 31
which the Catholic Church has been obliged to undergo in Upper California by being organized in conformity with the laws of the United States in the matter of corporations. The one which now ex- ists there with the name of Catholic Church is not the one which the Viceroy of Mexico founded with the assistance of the Society of Jesus. So that even if we see in the interests claimed in this case a thing belonging to the Church, the claim could not be established by the American Catholics of Upper California. But this is doubly true because, as we said before, from a historical and philosophical point of view the political and temporal character predominated in the missions in question.
When they were planned and began to be founded the Spanish Gov- ernment did not appear even in the mere character of propagator of the faith which in certain cases is assumed. At that time it had not been recognized yet that the political machine is not a good instru- ment for the propagation of religious truth. Indeed the rights of Spain in the American continent, based upon the bull of Alexander the Sixth were conditioned on the propagation of the catholic religion. The acts of the Spanish monarch and of his delegates in America, then, seemed at times to have a tendency towards that end only, but in this matter things went on in a different way, and the viceroys de- clared without the least hesitation that they accepted the cooperation of the Jesuits to extend the dominions of the Crown. Not only in the principle, but in the execution, the characteristic traits of the under- taking are revealed, as is also the transformation, so to say, to which the missionaries were subjected by being converted into civil magis- trates and military chiefs to carry out the work which the Colonial Government had authorized them to do. It was when this work was in the course of execution, when there existed in California some establishments whose relations [were] much closer with the Viceroy and the King of Spain than with the Archbishop of Mexico, and could not escape notice, that several donations were made for the purpose of maintaining those establishments and others of the same kind; and in some instances the donor explained in an equivocal manner, that it was one of his desires to contribute to the enlargement of the do- minions of his sovereign. It can be demonstrated in a thousand ways that the missions to which this case refers did not constitute an ec- clesiastical and local corporation; but that they were derived from the Government of Mexico, their objects being in relation with the general interests and with the customs of the country. Certain it is that one of those objects was the conversion of the natives to Chris-
32 THE HAGUE COURT REPORTS
tianity; but this is not the end, nor the predominant or exclusive in- terest which appears in the historical monuments. It was pointed out before that the Jesuits made application for the license to found the missions not to their superiors in the ecclesiastical order but to the civil authority, and that the latter granted the permission in the form of an arrangement, in which the purpose of extending and consoli- dating the dominions of Spain appears.
If the present Catholics of California think that they are entitled to the means organized for that purpose they might in the same way claim the revenues of which the Spanish and the Mexican Govern- ments made certain expenses to plant, develop and maintain the power of the Government, and the civil administration in the Californias (Exhibits Nos. 3, 4 and 5 of defensive evidence).
There was in the original acts stated and alleged by these claimants an undertaking of the temporal power in which the latter took the Jesuit missionary as an instrument. See the preamble in the authoriza- tions and orders given to them (Exhibit No. 21) and it will be noticed that the conquest of the Californias had been already undertaken with- out result by means exclusively political and military, and that the arrangement between the Viceroy of Mexico and the Society of Jesus was the continuation of the same attempt with different means, to the power exclusively physical which had failed, they sought to add the moral ascendancy of the missionaries and the pecuniary means with •whose collections the Jesuits had been entrusted, with a view to profit by their peculiar skill in the matter. The documents which had been cited, in which the preparatory steps, provisions and regulations favor- ing the development of the new plan are seen, plainly show that the minds of those who contributed to its conception and execution took less interest in the philanthropic and abstract object of converting and civilizing heathen barbarians, than in the result, much more positive and politic, of reducing the natives of California, and of incorporating them with the other subjects of Spain. All the authorizations given to the Jesuits, refer to points of authority and government.
In examining this point, the document marked No. 21 in the de- fensive evidence, must be read in all its parts. It contains the author- ization or arrangement between the Viceroy of Mexico and the So- ciety of Jesus, to prosecute the conquest of the Californias, which had been attempted and suspended. The Viceroy states that the neces- sity of making extraordinary expenses on account of an insurrection in the colony, prevented the drawing of resources from the royal treasury for an enterprise in which $225,000 had been already ex-
THE PIOUS FUND CASE 33
pended without fruit, and in consideration of that he accepts the proposition that the expenses of the new attempt to submit the natives of California should be met through the assistance which several per- sons had offered. But further down and indeed in every line of the document, it is given to be understood that the work proposed was nothing else than the continuation of the conquest attempted before. The license reads: "to go into the interior to make the conquest and reduction of the infidels."
The services rendered by the auxiliaries of the missionaries were considered as services done in war, and of the same character as those rendered in the conquests already achieved. The document con- tains the express clause that all the conquests should be made in the name of His Majesty.
The question being conquests and operations of war, the power of organizing and taking soldiers, of appointing and removing officers, and of issuing the necessary orders "in the service of His Majesty" was included in the authorization. After making provisions in re- gard to the objects of conquests, the document provides for the or- ganization of the new colony, and the monks are empowered to ap- point, "in the name of His Majesty," authorities who should admin- ister justice, and to whom the newly conquered subjects should yield obedience. All this is done without prejudice to the approval of the sovereign and with the incentive of his gratitude, which is a most elo- quent indication that it was the question of his services.
All the acts of the missionaries, after they arrived in the territories where the new plan of conquest was to be developed, have the char- acter of a civil, political and military undertaking. Before they planted the cross in the territory of California, the flag of the King of Spain was hoisted, and all subsequent steps were directed less to establish the pulpit and the preaching, than to organize, according to the in- struction of the viceroys, the military and civil power of which the Jesuits were the delegates, to take possession of the land in the name of the monarch, to fortify the places occupied, to attract there sub- jects rather than neophytes, and to appoint and establish judges, and other functionaries of the civil and political order.
In regard to this are also historical monuments which can be seen in the defensive evidence. One of them is the letter copied in docu- ment No. 22. In it we see the narrative of a true conquest and the proper terms used, the missionaries giving to themselves the name of conquerors. Relating their success, they state (page 17) that "all that land had been conquered, not converted by a few Spaniards."
34 THE HAGUE COURT REPORTS
It is useless to dwell upon the demonstration that the undertaking instructed to the missionaries of the Society of Jesus and carried on by them, was nothing else than an extension of the Spanish posses- sions in America. Although it was stipulated at the beginning that the expenses of the work should be met by private donations and that the conqueror could not draw against the royal treasury without pre- vious consent of the sovereign, some expenses were made by the public treasury, and even the viceroys sometimes gave assistance out of their own money. Thus it is that we see in everything the religious and temporal ends and means confounded, the latter prevailing in most of the cases. The undertaking did not lose its original character in the course of time. It being attempted in 1697, twenty years later, the missionaries and their armed auxiliaries were "very especially recom- mended to attend to the advancement of that conquest" (document No. 27, page 131). For that purpose it was called to mind (page 2) that the former arrangements had for their object "the discovery of the provinces of the Calif ornias and the conversion of the Indians." Here we see again the political object fraternizing with the religious zeal, if not palliated by it. The latter is also spoken of in other docu- ments, and it certainly exercises a great influence at the time that con- quest was undertaken, because the habits and the feelings, sincere or affected, of the Spanish monarchs so required.
Boasting of being delegates of God, they had to show their zeal by sending him the souls of their subjects. It suited those times to mix in everything religion with politics. This alliance, which was very close in the Spanish colonies of America, is also observed in those of a different origin. Even in the original colonies which gave birth to the United States, we can point out works and objects of a religious character in the bosom of establishments which had nothing to do with the Church, and which were no more than a derivation of the civil power. Some of the first enactments in those colonies had a tendency to defray the expenses of public worship; in others the political ca- pacity of those who did not belong to any Church, was declared as a fundamental measure.
In the charter of James the First to the Colony of Virginia, it was explicitly ordained that religion should be established according to the doctrines and rights of the English Church, and that the emi- grants should owe fidelity to the King and to his creed. And cer- tainly it would not occur to anybody, if in consequence of some human
1Not printed.
THE PIOUS FUND CASE 35
necessitude a part of the United States would pass to another nation, to pretend that the territory so lost should carry with itself as a dotation, the resources which had served at a remote time to lay the foundation of the political and the religious institutions. All the ancient documents which have been accumulated in this case pro- claimed that the Government of the viceroy first, and afterwards the Republican Government of Mexico were the supreme authority in regard to the missions of the Calif ornias. Notwithstanding that the said missions were entrusted to monks and ecclesiastical functionaries, the character of civil delegates which the latter had from the begin- ning was continued afterwards, and we see the Government regulating and controlling everything.
The sovereign, the viceroy, the president of the Republic, the inter- ests of nationality and politics, always predominate as influence, as purpose, as principal end. In all the stages through which the mis- sions passed, we see the Government act, in regard to them, as a superior authority by virtue of one of his rights, which was recog- nized by the Jesuits, the Fernandinos, the Dominicans and even by the Bishop of California, created, in a certain way, by the Govern- ment of the Republic. What can lead one into error is that in the first days of the conquest, and for many years afterwards, the Government had not in California any other delegates than the missionaries. It is not before the 24th of May, 1832, that we meet with a law enacted to send civil commissioners to California to put the local administra- tion in harmony with the new forms which the Government and the general administration of the country had adopted. This, however, did not produce a divorce between the two orders of administration, and the civil Government retained the superior and exclusive authority which [it ] had exercised in regard to the fund of the missions. Simul- taneous with the above cited law, was the one issued on the 25th of May, and published on the 1st of June of the same year, in which provisions were made in relation to the lease of the estates in which the said fund consisted, and a commission of three persons appointed for the management of said fund.
On November 29th of the same year, we see the Government order- ing the alienation of the houses situated in Vegara Street, and in Belemitas Alley. Soon afterwards (January 23, 1833) the same Gov- ernment thought it proper to revoke the order relative to the aliena- tion. On the 24th of the same month and year, it approved the regu* lations for the administrative board it had created. On March 16, 1833, it issued new orders in relation to the lease of the estates ; and
36 THE HAGUE COURT REPORTS
in all those laws, and especially in that which organized the admin- istrative board, and in the said regulations, it appears that the Govern- ment acted as the superior authority in the matter, and that [which] was called the fund of California was no longer but an especial fund which the same Government had created, in the bosom of the public treasury, to serve to certain objects.
And there is no reason to regard those acts and measures as usur- pations. Especially after the expulsion and extinction of the Society of Jesus, the Government of Mexico had to substitute itself in the place of that society and to continue to act in the matter with such ful- ness of authority as the missionaries could never have. The Govern- ment not only withdrew the faculty which the Jesuits had received from the principal contributions to the fund of California to admin- ister and invest funds without giving account; but it added to that faculty of private origin those which were inherent in the public power, either by virtue of the eminent domain, by the character of the institution, or by the part which in regard to the latter the tem- poral government had always exercised.
Exhibit No. 25 throws much light on the character of the fund after the extinction of the Jesuits, as it contains a report made to the King of Spain upon the matter. In that report we find the confirmation of the fact, that to a certain degree, the civil administration and the temporal interest were interwoven with the missions, that the mis- sionaries had been the chiefs of the conquering forces, and that their commission had for its principal object to further the conquest of America "without leaving behind any Indians unreduced." (Sin dejar Indiis par reducir a la espalda.)
All the antecedents above referred to serve to illustrate this sub- ject, but they could not in any case, taking their date into considera- tion, be a proper matter for reclamation on the part of the present Catholics of California. The claim put forward by them through their bishops derived from the orders dictated by the public powers in Mexico in the year 1842 definitively incorporating the fund in ques- tion in the public treasury and constituting on one of the revenues. [Sic.]
Keeping in mind all the history of the fund, we see that its char- acteristic nature did not change after the new aspect which the said orders gave it. Nothing has been more common in Mexico, as well as in other countries, than to assign certain funds and especial guar- antees for the supports of institutions and other proper matters of civil administration. Colleges, hospitals, and other like establish-
THE PIOUS FUND CASE 37
ments have J>een founded and sustained in that way. At the present time there exists in Mexico an especial fund inlaid in the revenues of the federation and intended to pay interests for capitals invested in the Vera Cruz railroad. So that the legislative acts which the claimants regard as their fundamental argument and the basis of their allega- tions, do not in the least deprive the fund of its character of temporal and national interest, which could not be transmitted to the American Church of California when this province became a possession of the United States.
There are in the history of this affair two very marked periods which are, to a certain extent, different. The first is when the Jesuits administered the fund of the missions, which they did with a certain degree of independency and freedom, limited by the interference of the Government. But after the Jesuits were expulsed and extin- guished, the Government is all in the matter. If some ecclesiastical functionaries have to interfere in it, that interference is altogether the work of delegation.
At the time of the establishment of the bishopric in California, the bishop received the said fund from the hands of the Government, and that, not by a virtue of a bilateral contract, but in consequence of a decree which could be, and was revoked by the same power which issued it. The resistance made by the bishop of California against the revocation of said decree, and which is now alleged as an argu- ment by the American bishops of that country, was very natural on the part of a functionary who considered the fund of the missions as the principal support of his office, and who not making a right appli- cation of those resources applied them in part to the especial objects of the local Church and worship. But that resistance was without reason or precedents.
It did not occur to any prelate of the Mexican Church to protest against the action of the Spanish Government when the latter re- ceived the fund of California from the hands of the expulsed Jesuits and commenced to manage it through the officers of the crown. The delegation made in favor of the Dominicans and Fernandinos was ac- cepted by them as a gracious act. Neither did the Republican Govern- ment of Mexico hear any censure or protest when it established some of the civil forms in which the fund was administered.
Nobody said a word against the law of May 25, 1832, for in- stance, which created the administrative board. All those acts of the civil power not only passed without contradiction on the part of the ecclesiastical authority, but were assented to and approved by docu-
38 THE HAGUE COURT REPORTS
ments and facts. It could not be otherwise, for, as was pointed out above, the judges who decided certain cases instituted by the suc- cessors of the contributors to the fund of California declared that the latter remained at the disposal of the Government; and this is the reason why we see its products collected as the other national rev- enues and the expenses of the missions confounded with those of the civil administration of California in the budget of the Republic. This case not only promises data to maintain that the interest to which the claim refers was a temporal concern, not depending upon the Church, but it also contains abundant proof that that interest was a national and Mexican one, incapable of being transmitted to another nationality as an appendage of a territory ceded. The decrees of the 8th of February and 24th of October, 1842, declared the objects of the fund national and "subject to the administration of the Govern- ment as they had been before." The author of this opinion does not think it necessary to discuss the point so unseasonably raised by these claimants and relative to the declarations of nationalization made by some administrations and to the censure the latter have incurred there- by, because what is important in this case is to ascertain the fact, not the right. If the declarations made by the Government of Mexico in 1842 were unjust and injurious, no complaint can be made on that account in the United States after the treaty of Guadalupe, still less before this commission the chronological starting point of whose powers is the 2d of February, 1843. What it is important to know under the circumstances of the case is that those declarations existed, and that in fact and according to the Mexican law the interest rep- resented by what was called the "Pious Fund of California" was in- corporated and identified with the nationality of Mexico.
Studying the history of this affair with impartiality it can be per- ceived that in the means to which the claimants refer there was not only a national character proper of interest and rights, so to say, Mexican, but a general character which was not confined to the locality of California. The document marked with No. 8 in the de- fensive evidence and with No. 28 in the list of papers of the case, be- sides showing (page 7) as above said, that the erogations of the public treasury and the contingents of individuals mingled together in the conquest and the civilization of the Calif ornias, also proves (pages 24 and 25) that the missions by which the first civil administration of those provinces was really established, were not considered as an in- stitution strictly local. That they were regarded as an instrument eventually applicable in the conquest of Sonora and which implied the
THE PIOUS FUND CASE 39
purpose of consolidating the Spanish rule in those regions, "not leav- ing behind any Indian nation unreduced or not subject to the royal dominion."
In the report cited above, which can be seen in document No. 25, the views of nationality and of precaution against the dismemberment which Mexico sustained at a later time, views which were closely con- nected with the missions of the Californias, take the most energetic expression. Speaking of the origin and object of the Pious Fund the said report reads as follows: "After deploring that the patriotism and charity of those who contributed to the formation of the said fund have no imitators, there is no one to devote himself to solicit other benefactors like the Marquis de Villa Puente, his wife Dona Gertrudis de la Pefia, the Marchioness de Forres de Rada, Don Juan Caballero, Don Nicolas de Aniage, his Excellency Don Luis de Velasco, the Jesuit Juan Maria de Luyando and her Excellency Dona Maria de Borja, who founded the fund with their large alms, they being, there- fore, the true agents of the propagation of the faith in the Peninsula of California, and of the extension of the royal dominions of His Majesty, as they prevent the latter from being occupied by foreign Powers, as is intended in regard to our ancient Spanish possessions/*
After the establishment of the Republican Government in Mexico, the views of the parties contending for power differed sometimes after the alienation of the property which constituted the oft-repeated fund ; but they united in the conviction that the work of the missions, or more properly speaking, of the conquest of California by means of the missionaries, tended as the principal of its ends, towards the con- solidation of the Mexican nationality in the Western States. These claimants have alluded to the memoir of the Minister of Justice pub- lished in Mexico in the year 1843. We see there, in fact, that the administration which succeeded that of General Santa Anna, deposed by a popular rising, censured the measures taken by that President in regard to the fund of California; but in the same document the na- tional and autonomical objects of that fund, which made it to be re- garded as sacred, are again asserted. The Minister of Justice de- plored that the instrument with which the Spanish Government had been able to build a wall against the barbarism of the Indians and the cupidity of some enlightened neighbors, was, so to say, broken in his hands. That functionary recording the fact that there were no longer any missionaries who could continue the work of the ancient religious orders, wrote these words : "It is a matter of regret to the Govern- ment not to find in our cloisters the apostolical enthusiasm of their
40 THE HAGUE COURT REPORTS
former founders; but, unfortunately, it is a palpable fact that for want of missionaries the missions have been diminishing in number; according to last year's memoir there are in the Republic six colleges for the propagation of the faith, seven colleges with but 87 priests who have under their charge 36 missions and their respective convents, for which reason it is clear that not even two priests can be assigned to each place. The Californias which have been considered as a gem of inestimable value, suffered much for want of ministers; it was thought that a bishop placed in those territories would provide with simple remedies which the distance from Mexico prevents from dic- tating and would be a new support of the nationality of the Republic against the political speculations of cabinets who propose to prosper at the expense of our negligence and blunders.
Here are revealed in a few lines the views which were entertained in treating of the missions of California and in collecting and employ- ing the means with which they were maintained. When the Govern- ment of Mexico ordered the alienation of the property in which that fund consisted and whose value and products were diminishing year after year; when it incorporated the fund in the national treasury, when it assigned an interest guaranteed by a public revenue, it did not intend to serve, nor did it serve in fact, but to national and political objects, with which were combined in a second degree the civilization and conversion of the natives.
The loss which Mexico sustained at a later time when she was mutilated of a province which has become in a few years one of the most flourishing States of the American Union and which has just saved the United States from a terrible financial crisis, had been long foreseen, and the creation of a bishopric there and the organization of the means which were put in the hands of the Bishop, had no other object than to make tighter the bonds between the Californias and Mexico, which the sword of a neighboring nation was to sever soon afterwards. It would be very strange that those means created, or- ganized and administered, well or badly, to save the integrity of the Mexican Republic, should pass into the hands of the people who suc- ceeded at last in snatching some of her most covetable districts. To pretend this, after Mexico has been deprived of Upper California, is tantamount to ask that a quarter of a century after that loss she should surrender, also, to the victor one of the arms with which she defended her integrity.
And that national and patriotic spirit which notoriously animated the Mexican Government in the arrangements alluded to was partici-
THE PIOUS FUND CASE 41
pated in by the individuals whose donations contributed to the forma- tion of the fund of California. It has been said above that those con- tingents came after the missions had been organized under the license of the viceroy with views the political character of which can not be denied without giving the lie to history. Taking into account the spirit of the times and of the nation to which the donors belonged, reflecting upon the position they occupied, studying the words in which they speak of the missions founded in this kingdom and allude to the service of the sovereign and to the extension of his dominions, it must be acknowledged that it could not be in the minds of those who pro- moted with their liberality the first missions in California, to found resources to be profited by an ecclesiastical corporation within the nationality of the United States. Certainly, neither the Marquis de Villa Puente, the Marchioness de Torres de Rada, nor the Viceroy Velasco, ever thought of a foundation which was not national in its character, like that, for instance, which exists in the United States under the name of Board of Foreign Missions. It has been said be- fore and it is proper to repeat here that the claimants and the society which they represent are not the continuators of the Mexican Church originally established in California. To the foundation of that Mexi- can Church both the ecclesiastical and the civil power contributed. These are the facts as shown in the historical monuments, and this is, on the other hand, what answered the relations at that time existing between the Catholic Church and the Mexican Government. They did not revolve, as at present, in spheres without contact ; there was some- thing of reciprocal intercourse between the two Powers; the one served the views of the other; and the Church paid for the exclusive protection of the Catholic religion by causing, in many cases, the re- ligious institution to serve the objects of the temporal power, as we have seen in the case of the first missionaries of California in whom the characters of priest and magistrate were confounded. The same Bishop sent to California in 1836 had something of this double char- acter, not only on account of the part which the Government took in his appointment and institution, but because he went there, as the above-cited memoir shows, with the tacit mission of strengthen- ing the Mexican nationality in that part of the Republic, and even of endeavoring to better a local administration which the arm of federa- tion could not reach from Mexico. The Mexican Church of California is of an ancient date. The Catholic Church which now exists there dates from 1850, as the same claimants state in order to prove the American nationality of the corporation.
42 THE HAGUE COURT REPORTS
Many other considerations could be added to those which precede; but they might perhaps weaken the evidence of the fact, which is as clear as daylight in the mind of the author of this opinion, that the claimants in this case come to ask that Mexico should surrender to them a thing which is properly and exclusively national and which the Mexican Government ought to have carried with it when it with- drew from Upper California.
The claimants have endeavored to pick up the arms which a van- quished faction abandoned a long time ago in Mexico, and they use them against the Government of the Republic, complaining of some measures dictated and carried into effect by it in regard to the fund of California. In the indirect complaints about this matter we per- ceive the echo of the imputation which the reactionary party in Mexico has made to the liberal reformers on account of certain laws relative to the property which was formerly administered by the clergy of that country. They forget that the progressive steps taken by Mexico in the direction of rendering the immense mass of property possessed by the clergy alienable, have been taken following the example set by many other nations in their efforts towards emancipation from theo- cratical despotism. They forget that the reforms in regard to the property kept by some Mexican corporations have produced the fruit of consolidating the constitution of the country by putting an end to the revolutions which used to have their arsenal in the barracks and their banker in the ecclesiastical administration. But they forget above all that it was not even the Republican Government of Mexico who initiated the acts from which the situation which the bishops of California assume to subvert, arose; that it was the Spanish Govern- ment who expulsed the Jesuits, who occupied their temporalities in- cluding the fund of California which they administered, and who com- menced to make use of the free administration which, for all the rea- sons already explained, the Government of the Republic continued to exercise afterwards.
All these antecedents gave origin to the condition of things existing at the time when Upper California passed into the hands of the United States by virtue of the treaty of Guadalupe. The two nations which made war first and then peace agreed not to turn their eyes to the past, forgetting all causes of complaint. The situation against which this claim is directed is the same which existed at the time of the signature of the treaty of Guadalupe. This act was preceded by long and profound debates between the negotiators in regard to the manner in which the painful amputation which Mexico then suffered
THE PIOUS FUND CASE 43
should be performed; in regard to which muscles and nerves should be cut and which should be left in the mutilated body. If the transfer of any revenues or property in favor of the new territories annexed to the American Union was contemplated at the time of the conclu- sion of said treaty, clauses in reference to that matter would have been introduced; but nothing, absolutely, was said; neither was there any agreement as to the funds which the religious corporations established in California had administered and which had served as dotation of the bishopric. The state of things in 1848, was, therefore, definitively consecrated, and no complaint can be made against Mexico on the part of the American Government or of its citizens with a view to recon- struct the situation in which, for instance, the Jesuits were when they managed the fund in question, or that in which the Fernandinos, the Dominicans and the Bishop Garcia Diego were when the Government of Mexico delivered to them the products of the property. When Mexico and the United States liquidated, so to say, their accounts in 1843, binding themselves not to look in the past for any cause of com- plaint and reclamation, the fund of California was already diluted in the national revenues of the Republic, and the Government of Mexico had only decreed some subsidies in favor of the ecclesiastical function- aries who served it as auxiliaries in that part of the federation.
This situation the claimants want to alter now, and they want also to oblige Mexico to pay the perpetual tribute of a rent to certain American corporations. Such a thing could only be exact if it had been included in the treaty which put an end to all questions which might arise between Mexico and the United States up to the peace of Guadalupe. After that peace the obligation which the claimants want to impose upon Mexico could only exist by common consent of the two Governments ; but far from such a consent having ever been given, the Government of Mexico does not recognize such an obligation and protests against the demand tending to impose the same upon it.
What that Government has done in another case as a free and volun- tary act, the Bishops of California want now to exact by compulsion. When the Mexican Government made with that of Spain the agree- ment relative to the fund of the Philippine Islands the onerous part of said agreement was counterbalanced by some useful stipulations in regard to claims which were settled by said agreement. What is there common between this and that which the claimants pretend? What do they give Mexico? What do they offer her in exchange for that kind of perpetual annuity which they want to secure in favor of their Churches ? When they advance this pretension accompanied by defer-
44 THE HAGUE COURT REPORTS
ences and renunciations like those which the Spanish Government made at the time of the arrangement which was called afterwards the Convention of Father Moran, then they will \have\ a right to cite this act as a precedent, and that, if precedents can be alleged in regard to a subject which depends only upon the judgment and free will of a Government.
Many are the differential traits between the two affairs which the claimants attempt to compare. But in a certain point of view the argument rebounds on them, because the same fact of the matter relative to the fund of the Philippine Islands having been settled by means of a convention shows that the consent of the Govern- ment of Mexico was required, and that the claimants have mistaken the way, because instead of presenting this demand they should ask their Government to initiate near that of Mexico a convention similar to that which Spain negotiated in the case above alluded to. The Government of the United States would judge if it was agreeable to it to take such a step, and Mexico making use of her most free sovereignty would say if she was disposed to admit such a pretension.
If the demand in this case is exorbitant as to the philosophical principle on which it is founded, it is no less so in regard to the cal- culations made by the claimants in order to ascertain the interest claimed. As to this point the original memorial was vague and inde- cisive; those who signed it really own that they did not know what they ought to claim and indirectly gave the commission the charge, not little difficult, of finding it out. In the course of the case, and as new data and documents have been accumulated, the claimants have fixed their ideas, and these appear at last translated into ciphers on page 31 of the printed argument. The point of departure taken there- in is the absorption of the fund of California in the Mexican treasury on February 3, 1842, and the memorandum which the Bishop Garcia Diego formed on that occasion regarding the importance of said fund.
Notwithstanding that that news contains conjectures rather than facts, and that let to perceive the inclination to increase the charge of the Government, the claimants ascribe to that document a mathematical exactness, calculating the rent that the funds already appropriated by the Mexican treasury are to produce, and capitalizing it at the rate of six per cent, make an amount of $577,583.37. [Sic.]
To this they add the old debts in favor of the said fund, as if it was a question of easy matter to convert into money at any time; and in this way they raise the capital to one million, six hundred and ninety-eight thousand, seven hundred and forty-five dollars. Upon
THE PIOUS FUND CASE 45
this sum they charge interest since the year 1849, and by virtue of this operation they fix the responsibility of the Mexican Government at two millions, one hundred and forty thousand, one hundred and four dollars.
They have behind this the moderation to cede one-tenth of the sum for the missions of the Lower California, and in this manner the de- mand is condensed to a determined cipher.
In this calculation, as it has been said, the ground itself is meager, and fluctuating. If is read the instruction of the Attorney Ramirez, to whom the claimants ascribe as much infallibility as to the Pope, it will be found at every step, that the author of that work wanted docu- mental facts in regard to some very important items, but when so much faith is given to the informations of that source, the bishops claiming ought not to have forgotten what the same Ramirez informed to the Government of Mexico, three days before the issue of the law which incorporated the said fund in the public treasury, and then, they will not make such whimful [sic.] and erroneous accounts. This in- formation reads at the foot of the page . . . among the last docu- ments which, copied anew, the claimants have brought to the commis- sion. It reads so:
EXCELLENT SIR:
The Pious Fund of Calif ornias consists of three-quarter parts of the hacienda of "Cienega del Pastor" and other three-quarter parts of seventy thousand dollars in which were sold in em- phyteusis some houses of Vergara Street, to build the new theater.
The hacienda of "San Agustin de Amoles" and the annexed in the districts of San Luis and Tamaulipas and the other of Ibarra in the district of Guanajuato. [.Sur.] A capital of forty thousand dollars imposed in the hacienda of "Arroga Zareo," and forty-two thousand dollars in the hacienda of "Santa Lugarda," and annexed farm, in the San Juan de los Llams. A deed of one hundred and sixty-two thousand, six hundred and eighteen dollars, three reals and three grains, invested at interest at the rate of five per cent per annum in the old Consulado and of which nothing has been collected till now, and in other sums which in several occasions has [sic.] been taken for the public treasury with the clause of devolution.
The three-quarter parts of the hacienda of the Cienega are embargoed and ordered to be sold pursuant a judicial demand prosecuted by Mr. Jose Ma. Jauregui vs. the Fund, and if the sentence is carried into effect in the manner it has been pro- nounced, the embargoed estate will not be sufficient to cover it. The fund is responsible to other credits, which could not be cov- ered on account of loan which, with its mortgage, the supreme
46 THE HAGUE COURT REPORTS
Government raised, as almost all its income was applied to pay the interest of said loan, and which is paying now at great sacri- fice. With the above stated I 'believe I answer to the note of your Excellency, which 1 have just received, and I avail of this opportunity to assure you of my considerations and respects.
God and Liberty, Mexico, February 5, 1842. PEDRO RAMIREZ, to His Excellency
the MINISTER OF JUSTICE AND PUBLIC INSTRUCTION.
It will be seen by the foregoing information report the bad condi- tion in which was the fund of Calif ornias at the time that the Mexican treasury received it, that a great part of it consisted in old credits, represented in Mexico by a paper which had almost no quotation in the market, and that the author of the report declares that all the fund was at the point of being absorbed by a judicial sentence pro- nounced in favor of one of the creditors.
It is not strange that the news hereabove copied should be so dis- couraging, as seventeen years before it was written, the Secretary of the Treasury of Mexico gave the same discouraging facts about the same matter, in his report presented to the Congress in the year 1825, viz. :
CALIFORNIAS
The missions of the same established with the purpose of bring- ing to the faith the Indians who did not possess it, were in charge of the Jesuits. When these yet subsisted, the Marquis of Villa Puente de la Pena, left in September, 1726, under the protection of the Government, six haciendas with the object of sustaining said missions. When the Jesuits were suppressed, the haciendas were managed by the administrator and auditor of the temporali- ties ; afterwards the clergy of San Fernando and Santo Domingo, and, in 1782, one of the Secretaries of the Mexican Treasury. They are now under the responsibility of one administrator.
The hacienda called "Zarra," the one of "San Augustin de los Amoles," the one of the "Buez," the "Valla," a part of the one of "Cienega," and another in the houses in Vergara St. of Mexico, comprise the total estates, in the county and in the city, of the fund of missions of Californias.
Their proceeds are very small, the insurrection of 1810 caused to the five first named, such great damages that [they] were al- most ruined. The want of cattle and repairs keep them very low : their proceeds may be in 1825, 12,150 dollars and 5 reals.
These missions have besides 631,056 dollars, 7 reals and 9 grains of capital imposed in consolidated, national treasury, consulado, and others, of which no interest are collected.
The salaries of its employees amount to 3,300 dollars, 4 reals.
THE PIOUS FUND CASE 47
The sinodes, viaticums, and the other indispensable expenses of the missionaries, clergymen are calculated at present to be 19,250 dollars [sic.] ; the deficit will be a passive credit which will take its place when it has to be paid.
Here is the place to insist upon the point that not only the claimants exaggerate much the importance of the fund, to which interest they believe to be share-holders, but they want to divide it as the lion of the fable, when they only leave one-tenth for the Church of the Lower California.
If it is to be given to the documents which constitute the history of this matter the literal and strict interpretation that the Bishops of Upper California pretends [sic.] the fund in question had as single and exclusive object the sustain [sustenance] of the missions.
The greatest number of them were since the beginning founded in the Lower California, so that making an equitable division and adopt- ing the same law, and the same history used by the claimants, it will only belong to them the smallest part of the interest they claim. (See the number of the missions respectively founded in the two Califor- nias, detailed in the statement which appears in the page 15 of Ex- hibit No. 25.)
As it has been already said the Mexican Government was sustain- ing these foundations with resources derived of private donation as well as of the public revenues. The confirmation of this can be seen by the successive budgets of the federal administration.
Whether after the peace of Guadalupe the same thing has been done or not, or whether it has been or not erogations for the civilization of the indigenes in Lower California or in the other Western States is a matter that the undersigned does not believe himself under the neces- sity of demonstrating here, nor the Mexican Government has not thought itself undoubtedly under the obligation of proving it, because those who now move question about the matter have no right to do it. [Sic.]
So must have been the views of the Government of the United States, when, in 1859, it abstained from presenting this claim, when it was stimulated to do so by those who now present the said claim
The Government of Washington must have opposed the exigency, to which they tried to push it, and this is the reason why it did not wish, as it was pretended, to ask for a dotation in money for the Catholic Church of Upper California, after depriving Mexico of that rich State.
48 THE HAGUE COURT REPORTS
Sometimes a daughter is taken by force or seduction from the pater- nal house, and the act is repaired by a forced marriage. The husband applies afterwards to demand a dower from the offended and aban- doned father.
The Bishops interested in this matter tried to induce the American Government to act in a similar way.
As they did not succeed, they now reproduce before us the same pretension, and it must be dismissed without hesitation.
Such is the opinion of the undersigned.
Award of Sir Edward Thornton, umpire in the original Pious Fund Case before the United States and Mexican Claims Commission of 1868. — Washington, November n, /o'/J.1
This case having been referred to the umpire for his decision upon a difference in opinion between the commissioners, the umpire ren- dered the following decision:
In the case of "Thaddeus Amat, Bishop of Monterey, and Joseph S. Alemany, Archbishop of San Francisco vs. Mexico" No. 493, it will be impossible for the umpire to discuss the various arguments which have been put forward on each side.
He will be able only to state the conclusions which he has arrived at after a careful and lengthened study of all the documents which have been submitted to him.
He is about to give his decision with a profound sense of the im- portance of the case in accordance with what he considers to be just and equitable as far as he can rely upon his own judgment and conscience.
The first question to be considered is the citizenship of the claimants.
On this point the umpire is of opinion that the Roman Catholic Church of Upper California became a corporation of citizens of the United States on the 30th of May, 1848, the day of the exchange of ratifications of the Treaty of Guadalupe Hidalgo.
By the VIII Article of the treaty it was agreed that those Mexi- cans residing in the territories ceded by Mexico to the United States, who wished to retain the title and rights of Mexican citizens should be under the obligation to make their election within one year from the date of the exchange of the ratifications of the treaty; and that those who should remain in the said territories after the expiration of that year, without having declared their intention to retain the char-
^United States and Mexican Claims Commission, Opinions (MS Dep't of State), vol. vii, p. 459.
THE PIOUS FUND CASE 49
acter of Mexicans, should be considered to have elected to have be- come citizens of the United States. It has not been shown that the Roman Catholic Church in Upper California had declared any inten- tion of retaining its Mexican citizenship and it can not but be con- cluded that it had elected to assume the citizenship of the United States as soon as it was possible for it to do so, which in the opinion of the umpire was when Upper California was actually incorporated into the United States on the exchange of the ratifications of the Treaty of Guadalupe Hidalgo.
With regard to any claim which may have originated before that date the claimants could not have been entitled to appear before the mixed commission established by the Convention of July 4, 1868; but a claim arising after that date would come under the cognizance of the commission.
The claim now put forward is for interest upon the so-called "Pious Fund of the Californias." If this interest should have been paid to the Right Reverend Francisco Garcia Diego, the Bishop of California, before the separation of Upper California from the Republic of Mexico, it seems to the umpire that a fair proportion of it ought now and since the 30th of May, 1848, to be paid to the claimants, who in his opinion are the direct successors of that Bishop, as far as Upper California is concerned.
The "Pious Fund of the Californias" was the results of donations made by various private persons for the purpose of establishing, sup- porting and maintaining Roman Catholic missions in California, and for converting to the Roman Catholic faith the heathens of that re- gion. The disbursements of the proceeds of these donations was en- trusted by the donors to the Society of Jesus. The object of the donors was without doubt principally the advancement of the Roman Catholic religion. The donations were made by private persons for particular and expressed objects and had nothing public, political or national in their character. Once permission was granted to the Jesuit fathers Salvatierra and Kiihu to establish missions in Cali- fornia, to take charge of the conversion to Christianity of the heathens, and to solicit alms for that purpose, it does not seem that the Spanish Government assisted them with any considerable sums, if any at all, and certainly with not so much as almost any Government would have considered itself bound to furnish for the benefit of a region over which it claimed dominion.
It can be easily understood that the Spanish Government was very
50 THE HAGUE COURT REPORTS
glad to avail itself of the religious feelings of its subjects, and saw with great satisfaction that their donations would powerfully con- tribute to the political conquest of the Californias; but the object of the donors was the religious conquest alone, though they too might have felt some pride in the consciousness that they were at the same time contributing to the extension of the possessions of Spain.
The alms, however, solicited in the first instance by the Jesuit fathers, and the donations subsequently made by piously disposed persons were neither political nor national; they were directed to the religious conquest of the Californias, and were the gifts of private persons for that particular object.
On the expulsion of the Jesuits from the Spanish Dominions, and the abolition of the Order, occurrences which the donors to the Pious Fund could not have foreseen, the Spanish Government naturally be- came the trustee and caretaker of that fund, but it took charge of it avowedly with all the duties and obligations attached to it. The mis- sions were confided to the Franciscan Order, and subsequently they were divided between this Order and the Dominicans, but although the Pious Fund was administered by the Spanish Government, its pro- ceeds were applied to the maintenance of the missions belonging to both Orders.
When Mexico became independent she succeeded to the trust which had been held by the Spanish Government, and continued to apply the proceeds of the fund to the maintenance of the missions. In 1836 it was considered desirable to establish a Bishopric which was to com- prise the two Californias.
An Act of Congress was passed for this purpose, and the same act entrusted to the Bishop, who was to be appointed, the administration and application of the Pious Fund in accordance with the wishes of its founders.
On the 8th of February, 1842, President Santa Anna repealed the latter part of the Act of 1836 and assigned the administration and ap- plication of the fund to the Mexican Government, but the decree which he signed for this purpose also declared that the object of the donor was to be carried out by the civilization and conversion of the savages. On the 24th of October of the same year another decree was issued by the above-mentioned President to the effect that the real estate and other property of the Pious Fund were to be incor- porated into the national treasury and were to be sold at a certain price, the treasury recognizing the total proceeds of these sales at an
THE PIOUS FUND CASE 51
interest of six per cent and the preamble of this decree declaring that the assumption by the Government of the care and the administration of the Pious Fund was for the express purpose of scrupulously carry- ing out the objects proposed by the founders.
Neither by the Spanish nor by the Mexican Government was it ever pretended that the proceeds of the fund were not finally to find their way into the hands of the ecclesiastical authorities in the Californias, or that they were to be applied to any other objects than those pointed out by the donors. Subsequently to the decree of October 24, 1842, the Mexican Government admitted its indebtedness and the obligation it was under to remit the proceeds of the fund to the Bishop of California by issuing orders in his favor on the custom house at Guaymas.
This obligation is still further acknowledged by the Act of Con- gress of April 3, 1845, which restored to the Bishop of the Californias and to his successors all credits and other properties belonging to the Pious Fund which were still unsold, for the objects mentioned in the law of September 29, 1836, without prejudice to what Congress might decide with regard to those properties which had already been alienated.
The above-mentioned credits must surely have included the indebt- edness of the Government with regard to the unpaid interest upon the property sold, the proceeds of which had been incorporated into the national treasury. The umpire does not find that any further legis- lation has been effected upon the subject since the Decree of April 3, 1845.
Such then was the state of the Mexican laws with regard to the Pious Fund at the time of the cession of Upper California to the United States, and the umpire is clearly of opinion that both the acts of the Mexican Government and its decrees above mentioned as well as the Act of Congress of 1845 are so many admissions that the Mexican Government was under the obligation to remit to the Bishop of California and his successors the interest on the proceeds of the property belonging to the Pious Fund which were held in trust by the Mexican Treasury, in order that the Bishop and his successors might carry out the wishes of the founders of that fund.
The umpire has already stated that he considers that as far as Upper California is concerned, the claimants are the direct successors of the Bishop of California, whose Diocese before the Treaty of Guadalupe Hidalgo, comprised both Upper and Lower California; and they ought therefore to receive a fair share of the interest upon
52 THE HAGUE COURT REPORTS
the proceeds of the Pious Fund, in order to devote it to the purposes for which it was founded, and which are of so decidedly a religious nature, that the ecclesiastical authorities must be the most proper persons to be employed in its application.
The beneficiaries of this share of the fund are the Roman Catholic Church in Upper California, and the heathens who are to be converted to Christianity; and indirectly all the inhabitants of the State of California, and even the whole population of the United States, are interested in the proper application of the portion which should be entrusted to the claimants, upon whom, considering the purposes to which the founders assigned their donations, the employment of the fund would most suitably devolve.
With regard to the proportion of the interest which should be paid to the claimants, the umpire is of opinion that nothing can be fairer than that the whole of the interest for twenty-one years should be divided into two equal parts, of which one should be paid to the claimants.
It has been argued that the award should be made in proportion to the populations respectively of Upper and Lower California.
The umpire is not of that opinion; for it seems to him that as the population and civilization increase, the number of conversions to be made diminish and there can be little doubt that Lower California needs the beneficial assistance of the Pious Fund as much and even more in proportion to its population than Upper California now does. The equal division of the interest seems to be the fairest award.
After a careful examination of the data furnished with regard to the yearly amount of the interest, the umpire is constrained to adopt the views of the commissioner of the United States. A larger sum I's claimed on the part of the claimants; but even with regard to this larger sum the defense has not shown, except indirectly, that its amount was exaggerated.
There is no doubt that the Mexican Government must have in its possession all the accounts and documents relative to the sale of the real property belonging to the Pious Fund and the proceeds thereof : yet these have not been produced; and the only inference that can be drawn from silence upon this subject is that the amount of the proceeds actually received into the treasury was at least not less than it is claimed to be.
The annual amount of interest therefore which should fall to the share of the Roman Catholic Church of Upper California is $43,080.99 and the aggregate sum for twenty-one years will be $904,700.79.
THE PIOUS FUND CASE 53
It has been urged that interest should be paid upon each annual amount from the respective date at which it became due. The umpire is not of this opinion. It is true that the Archbishop of San Fran- cisco states in his deposition that when in the City of Mexico in 1852, he demanded payment of the amounts, or property of the Pious Fund, and that receiving no answer to his demands he reiterated the same, and only after a long time was officially informed that the Government could not accede to them.
From a man of the position and character of the Archbishop there can be no doubt of the truth of this statement; but yet there is 110 documentary evidence of these facts, and the umpire therefore sup- poses that the demand and the refusal were both verbal. Upon a mat- ter of such serious importance the umpire does not think that a verbal refusal by a Government to make a certain payment can be taken as its final determination upon the subject. The refusal may even have been qualified by the inability of the Government to provide the neces- sary funds at the time of the demand. Of this in the absence of any writing upon the subject, no judgment can be found. The umpire further thinks that considering the troubles and difficulties to which Mexico and her Government have been subject for several years past it would not be generous nor even fair to punish them for their fail- ure to pay interest upon a capital of the nature of the Pious Fund, so far as to insist upon the payment of interest upon that interest. As a matter therefore both of justice and equity the umpire thinks that this second interest ought not to be demanded.
The umpire consequently awards that there be paid by the Mexican Government on account of the above-mentioned claim the sum of nine hundred and four thousand, seven hundred Mexican gold dollars and seventy-nine cents ($904,700.79) without interest.
Washington, November 11, 1875.
Decision of Sir Edward Thornton, amending the award of the original Pious Fund Case before the United States and Mexican Claims Commission of 1868. — Washington, October 24, 1876*
Upon consideration of the agent of Mexico to amend the award made herein, the umpire rendered the following decision:
With reference to the case of "Thaddeus Amat et al. vs. Mexico"
^United States and Mexican Claims Commission, Opinions (MS. Dep't of State), vol vi, p 544.
54 THE HAGUE COURT REPORTS
No. 493, the agent is quite right in stating that there is an error of $1,000 in the addition of the sums which are considered as bad debts, and which should be deducted from the total of the "Pious Fund."
Instead of being $46,617, these bad debts are $47,617. The total of the fund will therefore be $1,435,033. The half of the interest upon this sum at six per cent will be $43,050.99 the amount of which for twenty-one years will be $904,070.79.
The umpire therefore finally awards that there be paid by the Mexican Government on account of the above-mentioned claim the sum of nine hundred and four thousand and seventy Mexican gold dollars and seventy-nine cents ($904,070.79) without interest.
Washington, October 24, 1876.
THE VENEZUELAN PREFERENTIAL CASE
between
GERMANY, GREAT BRITAIN, ITALY and VENEZUELA
ET AL
Decided February 22, 1904
Syllabus
The arbitration had its origin in a controversy which arose over certain pecuniary claims of the subjects of Great Britain, Germany and Italy against the Republic of Venezuela. A solution not having been reached by the diplomatic negotiations, the controversy culminated on December 11, 1902, in the ordering by Great Britain of a blockade of the ports of Venezuela. Two days afterward Venezuela offered to submit the controversy to arbitration. This offer was ignored and seven days later the blockade of the Venezuelan ports was declared by the British, German and Italian Governments.
At the same time the United States, Mexico, Spain, France, Bel- gium, the Netherlands, and Sweden and Norway also held claims against Venezuela, which had been the subject of diplomatic negotia- tions, but no forcible measures had been employed by these Govern- ments to secure the adjustment of their claims.
After the blockade had been put into effect, Venezuela sent a repre- sentative to Washington with full powers to negotiate with the repre- sentatives of the creditor Powers a settlement of all the matters in controversy. The negotiations took place during the winter and spring of 1903. In the course of the negotiations the Venezuelan representa- tive proposed that the claims of all the countries above-mentioned against Venezuela be paid out of the customs receipts of the ports of La Guaira and Puerto Cabello, thirty per cent of the receipts of which would be set aside each month for that purpose. The proposal was accepted by the claimant nations and an assignment of the revenues mentioned was made in their favor; but Great Britain, Germany and Italy, the blockading Powers, took the position that their claims should not rank with the claims of the other Powers for compensation, but should be given priority of payment. Venezuela declined to accept this view and the question was submitted by agreements signed May 7, 1903,1 for determination by the Hague tribunal. The other creditor Powers were joined as parties to the arbitration.2
*Post, p. 62.
2The respective claims of all the creditor Powers were submitted to mixed commissions consisting of one national each of Venezuela and the claimant nation, with a neutral as umpire, which met at Caracas and subsequently re- ported their awards.
56 THE HAGUE COURT REPORTS
Pursuant to the provisions of the protocols, the Czar of Russia named three members of the panel of the Permanent Court of Arbi- tration as arbitrators, no one of whom was a citizen or subject of any of the signatory or creditor Powers, as follows: Nicolas V. Mourawieff and Fr. Martens of Russia, and Heinrich Lammasch of Austria-Hun- gary. The sessions of the tribunal began October 1, 1903, and ended November 13, 1903. The decision, which was rendered on February 22, 1904, held that:
1. Germany, Great Britain and Italy have a right to preferential treatment for the payment of their claims against Venezuela ;
2. Venezuela having consented to put aside thirty per cent of the revenues of the customs of La Guaira and Puerto Cabello for the pay- ment of the claims of all nations against Venezuela, the three above- named Powers have a right to preference in the payment of their claims by means of these thirty per cent of the receipts of the two Venezuelan ports above mentioned ;
3. Each party to the litigation shall bear its own costs and an equal share of the costs of the tribunal.1
AWARD OF THE TRIBUNAL
Award of the tribunal of arbitration constituted in virtue of the protocols signed at Washington on May 7, 1903, between Great Britain, Germany and Italy, on the one handy and Venezuela on the other. — The Hague, February 22, 1004.*
The tribunal of arbitration, constituted in virtue of the protocols signed at Washington on May 7, 1903,8 between Germany, Great Britain and Italy on the one hand and Venezuela on the other hand ;
Whereas other protocols were signed to the same effect by Bel- gium, France, Mexico, the Netherlands, Spain, Sweden and Nor- way and the United States of America on the one hand and Vene- zuela on the other hand4 ;
Whereas all these protocols declare the agreement of all the con- tracting parties with reference to the settlement of the claims against the Venezuelan Government;
Whereas certain further questions, arising out of the action of the Governments of Germany, Great Britain and Italy concerning the settlement of their claims, were not susceptible of solution by the ordinary diplomatic methods;
*Post, p. 61.
2Official report, p. 123. For the French text, see Appendix, p. 441.
*Post, p. 62 *Post, p 74.
THE VENEZUELAN PREFERENTIAL CASE 57
Whereas the Powers interested decided to solve these questions by submitting them to arbitration, in conformity with the disposi- tions of the Convention, signed at The Hague on July 29th, 1899, for the pacific settlement of international disputes ;
Whereas in virtue of Article 3 of the protocols of Washington of May 7th, 1903, His Majesty the Emperor of Russia was requested by all the interested Powers to name and appoint from among the members of the Permanent Court of Arbitration of The Hague three arbitrators who shall form the tribunal of arbitration charged with the solution and settlement of the questions which shall be submitted to it in virtue of the above-named protocols;
Whereas none of the arbitrators thus named could be a citizen or subject of any one of the signatory or creditor Powers and whereas the tribunal was to meet at The Hague on September 1st, 1903, and render its award within a term of six months ;
His Majesty the Emperor of Russia, conforming to the request cf all the signatory Powers of the above-named protocols of Wash- ington of May 7th, 1903, graciously named as arbitrators the fol- lowing members of the Permanent Court of Arbitration :
His Excellency Mr. N. V. Mourawieff , Secretary of State of His Majesty the Emperor of Russia, Actual Privy Councilor, Minister of Justice and Procurator of the Russian Empire,
Mr. H. Lammasch, Professor of Criminal and of International Law at the University of Vienna, member of the Upper House of the Austrian Parliament, and
His Excellency Mr. F. de Martens, Doctor of Law, Privy Coun- cilor, permanent member of the Council of the Russian Ministry of Foreign A ffairs, member of the Institut de France;
Whereas Lv unforeseen circumstances the tribunal of arbitration could not be definitely constituted till October 1st, 1903, the arbi- trators, at their first meeting on that day proceeding in conformity with Article 34 of the Convention of July 29th, 1899, to the nom- ination of the president of the tribunal, elected as such his Excel- lency Mr. Mourawieff, Minister of Justice;
And whereas in virtue of the protocols of Washington of May 7th, 1903, the above-named arbitrators, forming the legally consti- tuted tribunal of arbitration, had to decide, in conformity with Article 1 of the protocols of Washington of May 7th, 1903, the fol- lowing points :
58 THE HAGUE COURT REPORTS
The question as to whether or not Germany, Great Britain, and Italy are entitled to preferential or separate treatment in the pay- ment of their claims against Venezuela, and its decision shall be final.
Venezuela having agreed to set aside thirty per cent of the cus- toms revenues of La Guaira and Puerto Cabello for the payment of the claims of all nations against Venezuela, the tribunal at The Hague shall decide how the said revenues shall be divided between the blockading Powers on the one hand and the other creditor Powers on the other hand, and its decision shall be final.
If preferential or separate treatment is not given to the block- ading Powers, the tribunal shall decide how the said revenue shall be distributed among all the creditor Powers, and the parties hereto agree that the tribunal, in that case, shall consider, in connection with the payment of the claims out of the thirty per cent, any preference or pledges of revenues enjoyed by any of the creditor Powers, and shall accordingly decide the question of distribution so that no Power shall obtain preferential treatment, and its decision shall be final.1
Whereas the above-named arbitrators, having examined with im- partiality and care all the documents and acts presented to the tribunal of arbitration by the agents of the Powers interested in this litigation, and having listened with the greatest attention to the oral pleadings delivered before the tribunal by the agents and counsel of the parties to the litigation ;
Whereas the tribunal, in its examination of the present litigation, had to be guided by the principles of international law and the maxims of justice ;
Whereas the various protocols signed at Washington since Feb- ruary 13th, 1903, and particularly the protocols of May 7th, 1903, the obligatory force of which is beyond all doubt, form the legal basis for the arbitral award;
Whereas the tribunal has no competence at all either to contest the jurisdiction of the mixed commissions of arbitration established at Caracas, nor to judge their action ;
Whereas the tribunal considers itself absolutely incompetent to give a decision as to the character or the nature of the military oper- ations undertaken by Germany, Great Britain and Italy against Venezuela ;
*Post, p. 62.
THE VENEZUELAN PREFERENTIAL CASE 59
Whereas also the tribunal of arbitration was not called upon to decide whether the three blockading Powers had exhausted all pacific methods in their dispute with Venezuela in order to prevent the employment of force;
And it can only state the fact that since 1901 the Government of Venezuela categorically refused to submit its dispute with Germany and Great Britain to arbitration which was proposed several times and especially by the note of the German Government of July 16th, 1901;
Whereas after the war between Germany, Great Britain and Italy on the one hand and Venezuela on the other hand no formal treaty of peace was concluded between the belligerent Powers ;
Whereas the protocols, signed at Washington on February 13th, 19031, had not settled all the questions in dispute between the belig- erent parties, leaving open in particular the question of the distribu- tion of the receipts of the customs of La Guaira and Puerto Cabello;
Whereas the belligerent Powers in submitting the question of preferential treatment in the matter of these receipts to the judg- ment of the tribunal of arbitration, agreed that the arbitral award should serve to fill up this void and to ensure the definite reestab- lishment of peace between them;
Whereas on the other hand the warlike operations of the three great European Powers against Venezuela ceased before they had received satisfaction on all their claims, and on the other hand the question of preferential treatment was submitted to arbitration, the tribunal must recognize in these facts precious evidence in favor of the great principle of arbitration in all phases of international dis- putes ;
Whereas the blockading Powers, in admitting the adhesion to the stipulations of the protocols of February 13th, 1903, of the other Powers which had claims against Venezuela, could evidently not have the intention of renouncing either their acquired rights or their actual privileged position ;
Whereas the Government of Venezuela in the protocols of Feb- ruary 13th, 1903 (Article 1), itself recognizes "tn principle the jus- tice of the claims" presented to it by the Governments of Germany, Great Britain and Italy;
*Post, pp. 65, 67, 70.
60 THE HAGUE COURT REPORTS
While in the protocol signed between Venezuela and the so-called neutral or pacific Powers the justice of the claims of these latter was not recognized in principle;
Whereas the Government of Venezuela until the end of January 1903 in no way protested against the pretension of the blockading Powers to insist on special securities for the settlement of their claims;
Whereas Venezuela itself during the diplomatic negotiations always made a formal distinction between "the allied Powers" and "the neutral Powers";
Whereas the neutral Powers, who now claim before the tribunal of arbitration equality in the distribution of the thirty per cent of the customs receipts of La Guaira and Puerto Cabello, did not pro- test against the pretensions of the blockading Powers to a prefer- ential treatment either at the moment of the cessation of the war against Venezuela or immediately after the signature of the pro- tocols of February 13th, 1903;
Whereas it appears from the negotiations which resulted in the signature of the protocols of February 13th and May 7th, 1903, that the German and British Governments constantly insisted on their being given guaranties for "a sufficient and punctual discharge of the obligations" (British memorandum of December 23d, 1902, communicated to the Government of the United States of Amer- ica1) ;
Whereas the plenipotentiary of the Government of Venezuela accepted this reservation on the part of the allied Powers without the least protest ;
Whereas the Government of Venezuela engaged, with respect to the allied Powers alone, to offer special guaranties for the accom- plishment of its engagements;
Whereas the good faith which ought to govern international rela- tions imposes the duty of stating that the words "all claims'' used by the representative of the Government of Venezuela in his con- ferences with the representatives of the allied Powers (statement left in the hands of Sir Michael Herbert by Mr. H. Bowen of
JNot printed.
THE VENEZUELAN PREFERENTIAL CASE 61
January 23rd, 19031) could only mean the claims of these latter and could only refer to them;
Whereas the neutral Powers, having taken no part in the warlike operations against Venezuela, could in some respects profit by the circumstances created by those operations, but without acquiring any new rights ;
Whereas the rights acquired by the neutral or pacific Powers with regard to Venezuela remain in the future absolutely intact and guar- anteed by respective international arrangements;
Whereas in virtue of Article 5 of the protocols of May 7th, 1903, signed at Washington, the tribunal "shall also decide, subject to the general provisions laid down in Article 57 of the international Convention of July 29th, 1899, how, when and by whom the costs of this arbitration shall be paid" ;
For these reasons, the tribunal of arbitration decides and pro- nounces unanimously that :
1. Germany, Great Britain and Italy have a right to preferential treatment for the payment of their claims against Venezuela;
2. Venezuela having consented to put aside thirty per cent of the revenues of the customs of l^a Guaira and Puerto Cabello for the payment of the claims of all nations against Venezuela, the three above-named Powers have a right to preference in the payment of their claims by means of these thirty per cent of the receipts of the two Venezuelan ports above mentioned.
3. Each party to the litigation shall bear its own costs and an equal share of the costs of the tribunal.
The Government of the United States of America is charged with seeing to the execution of this latter clause within a term of three months.
Done at The Hague, in the Permanent Court of Arbitration, February 22nd, 1904.
(Signed) N. MOURAWIEFF (Signed) H. LAMMASCH ( Signed ) MARTENS
JMR. BOWEN'S STATEMENT: Mr. Bowen proposes that all claims against Vene- zuela shall be paid out of the customs receipts of the two ports of La Guaira and Puerto Cabello, the percentage to be 30 per cent each month of the receipts. In case of failure on the part ^of Venezuela to pay the said 30 per cent, the creditor nations will be authorized to put, with the consent and without any opposition on the part of Venezuela, Belgian custom officials in charge of the said two custom houses, and to administer them until the entire foreign debt is paid. Official report, p. 159.
62 THE HAGUE COURT REPORTS
AGREEMENT FOR ARBITRATION
Protocol of Agreement between Germany and Venezuela respecting the reference of the question of the preferential treatment of claims to the tribunal at The Hague.— Signed at Washington, May 7, /poj.1
Whereas protocols have been signed between Germany, Great Britain, Italy, the United States of America, France, Spain, Belgium, the Netherlands, Sweden and Norway, and Mexico on the one hand, and Venezuela on the other hand, containing certain conditions agreed upon for the settlement of claims against the Venezuelan Government2 ;
And whereas certain further questions arising out of the action taken by the Governments of Germany, Great Britain and Italy, in connec- tion with the settlement of their claims, have not proved to be sus- ceptible of settlement by ordinary diplomatic methods ;
And whereas the Powers interested are resolved to determine these questions by reference to arbitration in accordance with the provisions of the Convention for the pacific settlement of international disputes, signed at The Hague on the 29th July, 1899;
Venezuela and Germany have, with a view to carry out that resolu- tion, authorized their representatives, that is to say :
Mr. Herbert W. Bowen as plenipotentiary of the Government of Venezuela, and
The Imperial German Minister, Baron Speck von Sternburg, as rep- resentative of the Imperial German Government to conclude the fol- lowing agreement :
ARTICLE 1
The question as to whether or not Germany. Great Britain, and Italy are entitled to preferential or separate treatment in the payment of their claims against Venezuela shall be submitted for final decision to the tribunal at The Hague.
Venezuela having agreed to set aside thirty per cent of the customs revenues of La Guaira and Puerto Cabello for the payment of the claims of all nations against Venezuela, the tribunal at The Hague shall decide how the said revenues shall be divided between the blockading
1Official report, p. 17. For the German text, see Appendix, p. 445. Identical protocols were signed on the same date by Venezuela with Great Britain and Italy respectively, both of which were done in the English language Belgium, Mexico, the Netherlands, Sweden and Norway, and the United States signed as ad- herents (post. p. 64). Spain, though not a signatory, also adhered and was represented by counsel before the tribunal.
zPost, pp. 65, 67, 70, 74.
THE VENEZUELAN PREFERENTIAL CASE 63
Powers, on the one hand, and the other creditor Powers, on the other hand, and its decision shall be final.
If preferential or separate treatment is not given to the blockading Powers, the tribunal shall decide how the said revenues shall be dis- tributed among all the creditor Powers, and the parties hereto agree that the tribunal, in that case, shall consider, in connection with the payment of the claims out of the thirty per cent, any preference or pledges of revenue enjoyed by any of the creditor Powers, and shall accordingly decide the question of distribution so that no Power shall obtain preferential treatment, and its decision shall be final.
AP TITLE 2
The facts on which shall depend the decision of the questions stated in Article 1 shall be ascertained in such manner as the tribunal may determine.
ARTICLE 3
The Emperor of Russia shall be invited to name and appoint from the members of the Permanent Court of The Hague three arbitrators to constitute the tribunal which is to determine and settle the questions submitted to it under and by virtue of this agreement.
None of the arbitrators so appointed shall be a subject or citizen of any of the signatory or creditor Powers.
This tribunal shall meet on the first day of September 1903, and shall render its decision within six months thereafter.
ARTICLE 4
The proceedings shall be carried on in the English language but arguments may, with the permission of the tribunal, be made in any other language also.
Except as herein otherwise stipulated, the procedure shall be regu- lated by the Convention of The Hague of July 29th, 1899.
ARTICLE 5
The tribunal shall, subject to the general provision laid down in Article 57 of the international Convention of July 29th, 1899, also de- cide how, when and by whom the costs of this arbitration shall be paid.
64 THE HAGUE COURT REPORTS
ARTICLE 6
Any nation having claims against Venezuela may join as a party in the arbitration provided for by this agreement
Done in duplicate at Washington this seventh day of May, one thousand nine hundred and three.
(Signed) HERBERT W. BOWEN (Signed) STERNBURG
The undersigned nations having claims against Venezuela hereby join with her as parties in the arbitration provided for in the foregoing protocol.1
For the United States of America,
JOHN HAY
For the Republic of Mexico,
[SEAT.] M. DE AZPIROZ
For Sweden and Norway,
[SEAL] May 27, 1903. A. GRIP
L'Ambassadeur de France, dument autorise et agissant au nom de son Gouvernement, adhere au protocole ci-dessus, sous reserve qu'il est bien entendu que Tarticle 4 du dit protocole ne fera pas obstacle a 1'application de la disposition de Tarticle 38 de Tacte de La Have, aux termes de laquelle c'est le tribunal arbitral qui decide du choix des langucs dont il fera usage et dont 1'emploi sera autorise devant lui.
ler Juin 1903.
[SEAL] JUSSERAND
Le Ministre de Belgique, dument autorise et agissant au nom de son Gouvernement adhere au protocole ci-dessus.
12 Juin 1903.
[SEAL] BN. MONCHEUR
Le Ministre des Pays-Bas, dument autorise et agissant au nom de son Gouvernement adhere au protocole ci-dessus.
Washington, le 13 Juin 1903.
[SEAL] GEVERS
1Malloy, Treaties, Conventions, etc, between the United States and Other Powers, vol. 2, p. 1876.
THE VENEZUELAN PREFERENTIAL CASE 65
ADDITIONAL DOCUMENTS
Protocol of Agreement between the Governments of Germany and Venezuela for the settlement of German claims. — Signed at Wash- ington, February 13
Whereas certain differences have arisen between Germany and the United States of Venezuela in connection with the claims of Ger- man subjects against the Venezuelan Government, the undersigned, Baron Speck von Sternburg, His Imperial German Majesty's Envoy Extraordinary and Minister Plenipotentiary, duly authorized by the Imperial German Government, and Mr. Herbert W. Bo wen, duly authorized by the Government of Venezuela, have agreed as follows:
ARTICLE 1
The Venezuela Government recognize in principle the justice of the claims of German subjects presented by the Imperial German Government.
ARTICLE 2
The German claims originating from the Venezuelan civil wars of 1898 to 1900 amount to 1,718,815.67 bolivares. The Venezuelan Government undertake to pay of said amount immediately in cash the sum of £5,500=137,500 bolivares (five thousand five hundred pounds— one hundred thirty-seven thousand five hundred bolivares) and for the payment of the rest to redeem five bills of exchange for the corresponding installments payable on the 15th of March, the 15th of April, the 15th of May, the 15th of June, and the 15th of July, 1903, to the Imperial German diplomatic agent in Caracas. These bills shall be drawn immediately by Mr. Bo wen and handed over to Baron Sternburg.
Should the Venezuelan Government fail to redeem one of these bills, the payment shall be made from the customs receipts of La Guaira and Puerto Cabello, and the administration of both ports shall be put in charge of Belgian custom-house officials until the com- plete extinction of the said debts.
ARTICLE 3
The German claims not mentioned in Articles 2 and 6, in particu- lar the claims resulting from the present Venezuelan civil war, the
1Official report, p. 5. For the German text, see Appendix, p. 447.
66 THE HAGUE COURT REPORTS
claims of the Great Venezuelan Railroad Company against the Ven- ezuelan Government for passages and freight, the claims of the engi- neer Carl Henkel in Hamburg and of the Beton and Monierbau Com- pany (Limited) in Berlin for the construction of a slaughterhouse at Caracas, are to be submitted to a mixed commission.
Said commission shall decide both whether the different claims are materially well founded and also upon their amount. The Venezu- elan Government admit their liability in cases where the claim is for injury to, or wrongful seizure of, property and consequently the com- mission will not have to decide the question of liability, but only whether the injury to or the seizure of property were wrongful acts and what amount of compensation is due.
ARTICLE 4
The mixed commission mentioned in Article 3 shall have its seat in Caracas. It shall consist of two members, one of which is to be appointed by the Imperial German Government, the other by the Government of Venezuela. The appointments are to be made before May 1, 1903. In each case where the two members come to an agreement on the claims, their decision shall be considered as final; in cases of disagreement, the claims shall be submitted to the deci- sion of an umpire to be nominated by the President of the United States of America.
ARTICLE 5
For the purpose of paying the claims specified in Article 3 as well as similar claims preferred by other Powers the Venezuelan Govern- ment shall remit to the representative of the Bank of England in Car- acas in monthly instalments, beginning from March 1, 1903, 30 per cent of the customs revenues of La Guaira and Puerto Cabello, which shall not be alienated to any other purpose. Should the Venezuelan Government fail to carry out this obligation Belgian customs officials shall be placed in charge of the customs of the two ports and shall administer them until the liabilities of the Venezuelan Government in respect to the above-mentioned claims shall have been discharged.
Any questions as to the distribution of the customs revenues spe- cified in the foregoing paragraph, as well as to the rights of Germany, Great Britain and Italy to a separate payment of their claims, shall be determined in default of another agreement, by the permanent tribunal of arbitration at The Hague. All other Powers interested
THE VENEZUELAN PREFERENTIAL CASE 67
may join as parties in the arbitration proceedings against the above- mentioned three Powers.
ARTICLE 6
The Venezuelan Goverment undertake to make a new satisfac- tory arrangement to settle simultaneously the five per cent Venezu- elan loan of 1896 which is chiefly in German hands, and the entire exterior debt. In this arrangement the State revenues to be employed for the service of the debt are to be determined without prejudice to the obligations already existing.
ARTICLE 7
The Venezuelan men-of-war and merchant vessels captured by the German naval forces shall be returned to the Venezuelan Government in their actual condition. No claims for indemnity can be based on the capture and on the holding of these vessels, neither will an in- demnity be granted for injury to or destruction of the same.
ARTICLE 8
Immediately upon the signature of this protocol the blockade of the Venezuelan ports shall be raised by the Imperial German Govern- ment in concert with the Governments of Great Britain and Italy. Also the diplomatic relations between the Imperial German and the Venezuelan Government will be resumed.
Done in duplicate in German and English texts at Washington this thirteenth day of February, one thousand nine hundred and three.
(Signed) STERNBURG (Signed) HERBERT W. Bo WEN
Protocol between Great Britain and the United States of Venezuela relating to the settlement of the British claims and other matters. — Signed at Washington, February 13, ipoj.1
Whereas certain differences have arisen between Great Britain and the United States of Venezuela in connection with the claims of British subjects against the Venezuelan Government, the undersigned, his Excellency the Right Honorable Sir Michael H. Herbert, K. C.
Official Report, p. 9.
68 THE HAGUE COURT REPORTS
M. G., C. B., His Britannic Majesty's Ambassador Extraordinary and Plenipotentiary to the United States of America, and Mr. Her- bert W. Bowen, duly authorized thereto by the Government of Ven- ezuela, have agreed as follows:
ARTICLE 1
The Venezuelan Government declare that they recognize in prin- ciple the justice of the claims which have been preferred by His Majesty's Government on behalf of British subjects.
ARTICLE 2
The Venezuelan Government will satisfy at once, by payment in cash or its equivalent, the claims of British subjects, which amount to about £5,500, arising out of the seizure and plundering of British vessels and the outrages on their crews, and the maltreatment and false imprisonment of British subjects.
ARTICLE 3
The British and Venezuelan Governments agree that the other British claims, including claims by British subjects other than those dealt with in Article 6 hereof, and including those preferred by the railway companies, shall, unless otherwise satisfied, be referred to a mixed commission constituted in the manner defined in Article 4 of this protocol, and which shall examine the claims and decide upon the amount to be awarded in satisfaction of each claim.
The Venezuelan Government admit their liability in cases where the claim is for injury to, or wrongful seizure of property, and con- sequently the questions which the mixed commission will have to decide in such cases will only be —
(a) Whether the injury took place, and whether the seizure was wrongful and
(b) If so, what amount of compensation is due.
In other cases the claims shall be referred to the mixed commission without reservation.
ARTICLE 4.
The mixed commission shall consist of one British member and one Venezuelan member. In each case where they come to an agreement, their decision shall be final. In cases of disagreement, the claims shall be referred to the decision of an umpire nominated by the Pre— ident of the United States of America.
THE VENEZUELAN PREFERENTIAL CASE 69
ARTICLE 5
The Venezuelan Government being willing to provide a sum suf- ficient for the payment within a reasonable time of the claims speci- fied in Article 3 and similar claims preferred by other Governments, undertake to assign to the British Government, commencing the 1st day of March, 1903, for this purpose, and to alienate to no other purpose, thirty per cent in monthly payments of the customs revenues of La Guaira and Puerto Cabello. In the case of failure to carry out this undertaking, Belgian officials shall be placed in charge of the customs of the two ports, and shall administer them until the liabilities of the Venezuelan Government, in respect of the above- mentioned claims, shall have been discharged.
Any question as to the distribution of the customs revenues so to be assigned and as to the rights of Great Britain, Germany, and Italy to a separate settlement of their claims, shall be determined, in default of arrangement, by the tribunal at The Hague, to which any other Power interested may appeal.
Pending the decision of the Hague tribunal, the said thirty per cent of the receipts of the customs of the ports of La Guaira and Puerto Cabello are to be paid over to the representatives of the Bank of England at Caracas.
ARTICLE 6
The Venezuelan Government further undertake to enter into a fresh arrangement respecting the external debt of Venezuela, with a view to the satisfaction of the claims of the bondholders. This ar- rangement shall include a definition of the sources from which the necessary payments are to be provided.
ARTICLE 7
The British and Venezuelan Governments agree that, inasmuch as it may be contended that the establishment of a blockade of Venezu- elan ports by the British naval forces has, ipso facto, created a state of war between Great Britain and Venezuela, and that any treaty existing between the two countries has been thereby abrogated, it shall be recorded in an exchange of notes between the undersigned that the convention between Great Britain and Venezuela of October 29, 1834, which adopted and confirmed, mutatis mutandis, the treaty of April 18, 1825, between Great Britain and the State of Colombia, shall be deemed to be renewed and confirmed, or provisionally re-
70 THE HAGUE COURT REPORTS
newed and confirmed, pending conclusion of a new treaty of amity and commerce.
ARTICLE 8
Immediately upon the signature of this protocol arrangements will be made by His Majesty's Government, in concert with the Govern- ments of Germany and Italy, to raise the blockade of the Venezuelan ports.
His Majesty's Government will be prepared to restore the vessels of the Venezuelan navy which have been seized, and further to release any other vessels captured under the Venezuelan flag, on the receipt of a guarantee from the Venezuelan Government that they will hold His Majesty's Government indemnified in respect of any proceedings which might be taken against them by the owners of such ships or of goods on board them.
ARTICLE 9
The treaty of amity and commerce of October 29, 1834, having been confirmed in accordance with the terms of Article 7 of this protocol, His Majesty's Government will be happy to renew diplo- matic relations with the Government of Venezuela.
Done in duplicate at Washington, this 13th day of February, 1903.
(Signed) MICHAEL H. HERBERT (Signed) HERBERT W. Bo WEN
Protocol of Agreement between Italy and Venezuela relative to the settlement of Italian claims. — Signed at Washington, February 13,
Whereas certain differences have arisen between Italy and the United States of Venezuela in connection with the Italian claims against the Venezuelan Government, the undersigned, his Excellency Nobile Edmondo Mayor des Planches, Commander of the Orders of SS. Maurice and Lazarus and the Crown of Italy, Ambassador Ex- traordinary and Plenipotentiary of His Majesty the King of Italy to the United States of America, and Mr. Herbert W. Bowen duly authorized thereto by the Government of Venezuela, have agreed as follows :
Official Report, p. 13.
THE VENEZUELAN PREFERENTIAL CASE 71
ARTICLE 1
The Venezuelan Government declare that they recognize in prin- ciple the justice of claims which have been preferred by His Majesty's Government on behalf of Italian subjects.
ARTICLE 2
The Venezuelan Government agree to pay to the Italian Govern- ment, as a satisfaction of the point of honor, the sum of £5,500, (five thousand five hundred pounds sterling), in cash or its equivalent, which sum is to be paid within sixty days.
ARTICLE 3
The Venezuelan Government recognize, accept and will pay the amount of the Italian claims of the first rank derived from the revo- lutions [of] 1898-1900, in the sum of 2,810,255 (two million eight hundred and ten thousand, two hundred and fifty-five) bolivar es.
It is expressly agreed that the payment of the above Italian claims of the first rank will be made without being the same claims or the same sum submitted to the mixed commission and without any revi- sion or objection.
ARTICLE 4
The Italian and Venezuelan Governments agree that all the re- maining Italian claims, without exception, other than those dealt with- in Article 7 hereof, shall, unless otherwise satisfied, be referred to a mixed commission to be constituted, as soon as possible, in the man- ner defined in Article 6 of the protocol, and which shall examine the claims and decide upon the amount to be awarded in satisfaction of each.
The Venezuelan Government admit their liability in cases where the claim is for injury to persons and property and for wrongful seizure of the latter, and consequently the questions which the mixed commission will have to decide in such cases will only be:
(a) Whether the injury took place or whether the seizure was wrongful and
(b) If so, what amount of compensation is due.
In other cases the claims will be referred to the mixed commission without reservation.
72 THE HAGUE COURT REPORTS
ARTICLE 5
The Venezuelan Government being willing to provide a sum suf- ficient for the payment, within a reasonable time, of the claims speci- fied in Articles 3 and 4 and similar claims preferred by other Gov- ernments, undertake and obligate themselves to assign to the Italian Government, commencing the first day of March 1903, for this pur- pose, and to alienate to no other purpose, thirty per cent of the cus- toms revenues of La Guaira and Puerto Cabello. In the case of failure to carry out this undertaking and obligation, Belgian officials shall be placed in charge of the two ports, and shall administer them until the liabilities of the Venezuelan Government, in respect of the above- mentioned claims, shall have been discharged.
Any question as to the distribution of the customs revenues so to be assigned, and as to the rights of Italy, Great Britain, and Germany to a separate settlement of their claims, shall be determined, in de- fault of arrangement, by the tribunal at The Hague, to which any other Power interested may appeal.
Pending the decision of The Hague tribunal the said thirty per cent of the receipts of the customs of the ports of La Guaira and Puerto Cabello are to be paid over to the representatives of the Bank of England at Caracas.
ARTICLE 6
The mixed commission shall consist of one Italian member and one Venezuelan member.
In each case, where they come to an agreement, their decision shall be final. In case of disagreement, the claims shall be referred to the decision of an umpire nominated by the President of the United States of America.
ARTICLE 7
The Venezuelan Government further undertake to enter into a fresh arrangement respecting the external debt of Venezuela with a view to the satisfaction of the claims of the bondholders. This arrangement shall include a definition of the sources from which the necessary pay- ments are to be provided.
ARTICLE 8
The treaty of amity, commerce, and navigation between Italy and Venezuela of June 19, 1861, is renewed and confirmed. It is how- ever expressly agreed between the two Governments that the inter- pretation to be given to the Articles 4 and 26 is the following:
THE VENEZUELAN PREFERENTIAL CASE 73
According to the Article 4, Italians in Venezuela and Venezuelans in Italy can not in any case receive a treatment less favorable than the natives, and, according to Article 26, Italians in Venezuela and Ven- ezuelans in Italy are entitled to receive, in every matter and especially in the matter of claims, the treatment of the most favored nation, as it is established in the same Article 26.
If there is doubt or conflict between the two articles, the Article 26 will be followed.
It is further specifically agreed that the above treaty shall never be invoked, in any case, against the provisions of the present protocol.
ARTICLE 9
At once upon the signing of this protocol, arrangements shall be made by His Majesty's Government, in concert with the Governments of Germany and Great Britain, to raise the blockade of the Venezu- elan ports.
His Majesty's Government will be prepared to restore the vessels of the Venezuelan navy which may have been seized, and further to release any other vessel captured under the Venezuelan flag during the blockade.
ARTICLE 10
The treaty of amity, commerce, and navigation of June 19th, 1861, having been renewed and confirmed in accordance with the terms of Article 8 of this protocol, His Majesty's Government declare that they will be happy to re-establish regular diplomatic relations with the Government of Venezuela.
Washington, D. C, February 13, 1903.
(Signed) E. MAYOR DBS PLANCHES (Signed) HERBERT W. BOWEN
We interpret our three protocols to mean that the thirty per cent referred to therein, of the total income of the custom-houses of La Guaira and Puerto Cabello, shall be delivered to the representative of the Bank of England at Caracas, and that the said thirty per cent is not assigned to any one Power but it is to be retained by the said rep- resentative of the Bank of England in Caracas and paid out by him in conformity with the decision rendered by the tribunal at The Hague.
Washington, February 14th, 1903.
74 THE HAGUE COURT REPORTS
Protocol of an Agreement between the United States of America and the Republic of Venezuela for submission to arbitration of all un- settled claims against Venezuela. — Signed at Washington, Febru- ary 17, zpoj.1
The United States of America and the Republic of Venezuela, through their representatives, John Hay, Secretary of State of the United States of America, and Herbert W. Bowen, the plenipotentiary of the Republic of Venezuela, have agreed upon and signed the fol- lowing protocol.
ARTICLE 1
All claims owned by citizens of the United States of America against the Republic of Venezuela which have not been settled by diplomatic agreement or by arbitration between the two Governments, and which shall have been presented to the commission hereinafter named by the Department of State of the United States or its Legation at Car- acas, shall be examined and decided by a mixed commission, which shall sit at Caracas, and which shall consist of two members, one of whom is to be appointed by the President of the United States and the other by the President of Venezuela.
It is agreed that an umpire may be named by the Queen of the Netherlands. If either of said commissioners or the umpire should fail or cease to act, his successor shall be appointed forthwith in the same manner as his predecessor. Said commissioners and umpire are to be appointed before the first day of May, 1903.
The commissioners and the umpire shall meet in the city of Car- acas on the first day of June, 1903. The umpire shall preside over their deliberations, and shall be competent to decide any question on which the commissioners disagree. Before assuming the functions of their office the commissioners and the umpire shall take solemn oath carefully to examine and impartially decide, according to justice and the provisions of this convention, all claims submitted to them, and such oaths shall be entered on the record of their proceedings. The commissioners, or in case of their disagreement, the umpire, shall decide all claims upon a basis of absolute equity, without regard to objections of a technical nature, or of the provisions of local legisla- tion.
1Malloy, Treaties, Conventions, etc., between the United States and Other Powers, vol. 2, p. 1870. For the Spanish text, see Appendix, p. 449. Similar protocols were signed by Venezuela with the following countries: Belgium (March 7, 1903), France (February 27, 1903), Mexico (February 26, 1903), Netherlands (February 28, 1903), Spain (April 2, 1903), Sweden and Norway (March 10, 1903).
THE VENEZUELAN PREFERENTIAL CASE 75
The decisions of the commission, and in the event of their disa- greement, those of the umpire, shall be final and conclusive. They shall be in writing. All awards shall be made payable in United States gold, or its equivalent in silver.
ARTICLE 2
The commissioners, or umpire, as the case may be, shall investi- gate and decide said claims upon such evidence or information only as shall be furnished by or on behalf of the respective Governments. They shall be bound to receive and consider all written documents or statements which may be presented to them by or on behalf of the respective Governments in support of or in answer to any claim, and to hear oral or written arguments made by the agent of each Govern- ment on every claim. In case of their failure to agree in opinion upon any individual claim, the umpire shall decide.
Every claim shall be formally presented to the commissioners within thirty days from the day of their first meeting, unless the commis- sioners or the umpire in any case extend the period for presenting the claim not exceeding three months longer. The commissioners shall be bound to examine and decide upon every claim within six months from the day of its first formal presentation, and in case of their dis- agreement, the umpire shall examine and decide within a correspond- ing period from the date of such disagreement.
ARTICLE 3
The commissioners and the umpire shall keep an accurate record of their proceedings. For that purpose, each commissioner shall ap- point a secretary versed in the language of both countries, to assist them in the transaction of the business of the commission. Except as herein stipulated, all questions of procedure shall be left to the de- termination of the c mmission, or in case of their disagreement, to the umpire.
ARTICLE 4
Reasonable compensation to the commissioners and to the umpire for their services and expenses, and the other expenses of said arbi- tration, are to be paid in equal moities by the contracting parties.
ARTICLE 5
In order to pay the total amount of the claims to be adjudicated as aforesaid, and other claims of citizens or subjects of other nations,
76 THE HAGUE COURT REPORTS
the Government of Venezuela shall set apart for this purpose, and alienate to no other purpose, beginning with the month of March, 1903, thirty per cent in monthly payments of the customs revenues of La Guaira and Puerto Cabello, and the payments thus set aside shall be divided and distributed in conformity with the decision of The Hague tribunal.
In case of the failure to carry out the above agreement, Belgian officials shall be placed in charge of the customs of the two ports, and shall administer them until the liabilities of the Venezuelan Govern- ment in respect to the above claims shall have been discharged. The reference of the question above stated to the Hague tribunal will be the subject of a separate protocol.
ARTICLE 6
All existing and unsatisfied awards in favor of citizens of the United States shall be promptly paid, according to the terms of the respective awards.
Washington, D. C, February 17, 1903.
JOHN HAY [SEAL]
HERBERT W. Bo WEN [SEAL]
THE JAPANESE HOUSE TAX CASE
between
FRANCE, GERMANY, GREAT BRITAIN and JAPAN Decided May 22, 1905
Syllabic
This case had its origin in the extraterritorial jurisdiction which was maintained respecting the citizens of foreign nations resident in Japan prior to 1894. By treaties with Great Britain, Germany and France, dated respectively, July 16, 1894,1 April 4, 1896,* and August 4, 1896,8 this practice was abandoned, Japan agreeing to set aside for perpetual lease to citizens or subjects of foreign nations certain tracts of land at various treaty ports. It was provided that no conditions other than those contained in the leases would be imposed in respect to such property. Accordingly, no taxes or charges, except those named in the leases, were paid for municipal or other purposes for a number of years subsequent to the signature of the treaties. Finally, however, the Japanese assumed the position that the leases had refer- ence only to unimproved land, and that the houses or other improve- ments were not included. The interested Governments declined to accede to Japan's view and the question was referred, by a compromis dated August 28, 1902,4 to a tribunal selected from the panel of the Permanent Court of Arbitration at The Hague as follows: Gregers Gram of Norway, Louis Renault of France, and Itchiro Motono of Japan. The sessions began November 21, 1904, and ended May 15, 1905, and the decision was rendered May 22, 1905. By a majority opinion, signed by the French and Norwegian members, the tribunal held that:
The provisions of the treaties and other engagements mentioned in the arbitration protocols not only exempt the lands held by virtue of the perpetual leases granted by the Japanese Government or in its name, but they exempt the lands and the buildings of every nature constructed or which may be constructed on these lands from all im- posts, taxes, charges, contributions, or conditions whatsoever other than those expressly stipulated in the leases in question.
The Japanese member dissented from this decision and upheld the contentions of his Government.
2Post, p. 91 *Post, p. 92. *Post, p. 85.
78 THE HAGUE COURT REPORTS
AWARD OF THE TRIBUNAL
Award of the tribunal of arbitration constituted in virtue of the protocols signed at Tokio, August 28, 1902, between Japan, on the one hand, and Germany, France and Great Britain on the other hand. — The Hague, May 22, 1905?
Whereas, according to the protocols signed at Tokio on August 28, 1902,2 a disagreement has arisen between the Government of Japan on the one hand and the Governments of Germany, France, and Great Britain on the other regarding the real meaning and scope of the following provisions of the respective treaties and other agreements existing between them, namely:
Paragraph 4, Article 18, of the treaty of commerce and naviga- tion of April 4, 1896, between Japan and Germany: "When such incorporation takes place [that is to say, when the several foreign settlements in Japan shall have been incorporated with the respective Japanese communes], the existing leases in perpetuity under which property is now held in the said settlements shall be confirmed, and no conditions whatsoever other than those contained in such exist- ing leases shall be imposed in respect of such property" ; and para- graph 3 of the complementary communication of the same date from the German Secretary for Foreign Affairs to the Japanese Minister at Berlin: "3. That, as the proprietary rights in the settlements mentioned in Article 18 of the treaty continue to belong to the Japanese State, the owners or their legal successors shall not have to pay duties or taxes of any kind for their land except the contract ground rent" ; and the clause in the reply of the Japanese Minister of the same date, to the foregoing communication : "That he entirely indorses the explanatory statements set forth therein, in Nos. 1 to 4, concerning the acquisition of real rights in landed property, the construction of warehouses, the freedom from taxation in the for- eign settlements, and the preservation of duly-acquired rights after the expiration of the treaty" ;
Paragraph 4, Article 21, of the revised treaty of August 4, 1896, between Japan and France: "When the changes above-indicated shall have taken place [that is to say, when the several foreign set-
*American Journal of International Law, vol. 2, p. 915. For the original French text, see Appendix, p. 452. *Postt p. 85.
THE JAPANESE HOUSE TAX CASE 79
tlements in Japan shall have been incorporated with the respective Japanese communes and made a part of the municipal system of Japan; and when the competent Japanese authorities shall have assumed all municipal obligations and duties, and the municipal funds and property belonging to such settlements shall have been transferred to said Japanese authorities], the leases in perpetuity, in virtue of which foreigners now possess property in the settle- ments, shall be confirmed, and property of that character shall not be subject to any duties, taxes, charges, contributions or conditions whatsoever, other than those expressly stipulated in the leases in question" ;
Paragraph 4 of Article 18 of the revised treaty of July 16, 1894, between Japan and Great Britain : "When such incorporation takes place" [that is, when the various foreign quarters existing in Japan shall have been incorporated into the respective communes of Ja- pan], "existing leases in perpetuity under which property is now held in the said settlements shall be confirmed, and no conditions whatsoever other than those contained in such existing leases shall be imposed in respect of such property."
Whereas the Powers at variance have agreed to submit their dif- ferences to the decision of a tribunal of arbitration ;
And whereas in virtue of the above-mentioned protocols the Gov- ernments of Germany, France, and Great Britain have designated as arbitrator Mr. Louis Renault, Minister Plenipotentiary, member of the Institute of France, professor in the Faculty of Law at Paris, Jurisconsult of the Department of Foreign Affairs, and the Gov- ernment of Japan has designated as arbitrator his Excellency Mr. Itchiro Motono, Envoy Extraordinary and Minister Plenipoten- tiary of His Majesty the Emperor of Japan at Paris, Doctor of Laws ;
And whereas the two above-mentioned arbitrators have chosen as umpire Mr. Gregers Gram, former Minister of State of Norway, Provincial Governor;
And whereas the tribunal thus composed has as its mission to decide, in the last resort, on the following question :
Do the provisions of the treaties and other engagements herein- above mentioned exempt only the lands held by virtue of the per- petual leases granted by the Japanese Government or in its name,
80 THE HAGUE COURT REPORTS
or do they exempt the lands and the buildings of every nature con- structed or which may be constructed on these lands, from all im- posts, taxes, charges, contributions, or conditions whatsoever other than those especially stipulated in the leases in question?
Whereas the Japanese Government maintains that the lands alone are exempt from the payment of imposts and other charges to the extent which has just been indicated;
And whereas the Governments of Germany, France, and Great Britain claim, on the contrary, that the buildings constructed on these lands enjoy the same exemption;
And whereas, in order to understand the nature and the scope of the engagements contracted on both sides through the perpetual leases it is necessary to examine several arrangements and agree- ments concluded, under the old treaties, between the Japanese au- thorities and the representatives of several Powers;
And whereas from these acts and stipulations inserted in the leases it is shown :
That the Japanese Government had consented to lend its assist- ance for the creation of foreign quarters in certain cities and ports of Japan, open to the citizens of other nations;
That on the lands designated for the use of the foreigners in the various localities the Japanese Government has executed, at its own expense, works for the purpose of facilitating their urban occupation ;
That as foreigners are not allowed to acquire ownership of lands situated in the country according to the principles of Japanese law, the Government has given them a perpetual lease on the lands ;
That the leases determine the extent of the lots leased and stipu- late a fixed annual rent, calculated in proportion to the area leased ;
That it was agreed that in principle the foreign quarters should remain outside the municipal system of Japan, but that they were not subjected to a uniform organization ;
That it was decided, by means of regulations, how the various administrative functions should be provided for, and that it was prescribed that the holders of the lands should be obliged to con- tribute partially toward the expenses of the municipality by means of dues the amount and mode of collection of which were deter- mined ;
THE JAPANESE HOUSE TAX CASE 81
And whereas it would be easy to explain the care taken in word- ing these documents in order to define the obligations of every nature incumbent on foreigners toward the Japanese Government, if it were understood that the annual rent represented not only the price of the lease but also the counterpart of the imposts which the lessees would have been owing by reason of the situation created in their favor by the leases, and that, consequently, they would not, in this capacity, have to bear any imposts and charges but those expressly mentioned in the said leases ;
And whereas, moreover, it is not denied that this is the real mean- ing of this document, as far as lands are concerned, but the Japanese Government alleges that the leases referred only to the bare lands and does not admit that the buildings erected on the lands shall be comprised in the stipulations on which the exemption from taxes would be based ;
And whereas it alleged that the lands alone belonged to the Gov- ernment, the buildings being, on the contrary, the property of the lessees and that in consequence the immunity in question can only extend to the real estate which had never been separated from the Government domain; and whereas, nevertheless, the question to be decided is whether, from the Government's point of view, the build- ings erected on the leased lands were, by mutual consent, considered as accessories of these lands or not, and the solution of this question does not depend on distinctions drawn from a pretended difference with regard to the ownership of the real estate ;
And whereas the tribunal can therefore not stop to take up the discussion begun on this subject and based on the principles of civil law;
And whereas the lands were leased for the purpose of building houses on them, as is shown at once by the situation of the lands and the nature of the improvements made thereon by the Japanese Government ;
And whereas the obligation to erect buildings was imposed in some localities under penalty of forfeiture, and the leases often con- tained a clause according to which the buildings situated on the lands should become the property of the Japanese Government in case the lessee failed to fulfil his engagements ;
And whereas it must be admitted that the circumstances just re-
82 THE HAGUE COURT REPORTS
lated offer arguments in refutation of the claim that the soil and the buildings constitute entirely different objects from the Govern- ment's standpoint in the relations between the parties;
And whereas in concluding these acts the Japanese Government acted not only as owner of the lands leased but also in its capacity as the sovereign Power of the country ;
And whereas the will of the parties was consequently the law in the matter, and, in order to determine how the acts were really in- terpreted we must examine the treatment to which the holders of the lands have actually been subjected in the various localities as far as the taxes are concerned ;
And whereas, in this regard, it is known that, according to a prac- tice which has never varied and has been in existence for a long num- ber of years, not only the lands in question but also the buildings erected thereon have been exempt from all taxes, imposts, charges, contributions, or conditions other than those expressly stipulated in the perpetual leases;
And whereas the Government of Japan maintains, to be sure, that this state of affairs, as well as the fiscal immunity which was en- joyed by foreigners in general in that country, was due only to the circumstance that the consular tribunals refused to give the neces- sary sanction to the fiscal laws of the country;
Whereas, however, this claim is unsustained by evidence and it is not even alleged that the Japanese Government ever made any reservations with respect to the German, French, and British Gov- ernments for the purpose of maintaining the rights which it says were violated ;
And whereas, although it has been alleged that the immunity enjoyed by foreigners with respect to taxes under the old treaties was general and extended to foreigners residing outside the conces- sion in question, it is nevertheless shown from information furnished on the subject of the holders of real estate (lands and houses) at Hiogo that the said rule was not universally applied ;
And whereas, at all events, the actual situation is not doubtful, however it is explained ;
And whereas, from the standpoint of the interpretation of the provisions of the new treaties with regard to which there is a dis- pute among the parties :
THE JAPANESE HOUSE TAX CASE 83
The drafting of Article 18 of the treaty between Great Britain and Japan (which treaty was previous to the two others), had been preceded by propositions to place foreigners holding lands on the same footing as Japanese subjects, both from the standpoint of the ownership of real estate which had been granted them on lease and in regard to the payment of taxes and imposts, but it was af ter- \vards agreed upon to continue the system which had prevailed until then;
And the Japanese Government claims, to be sure, that the ques- tion of maintaining the status quo referred only to the lands, but this claim is not substantiated by the expressions employed during the course of negotiations;
And, on the contrary, the representative of the Japanese Govern- ment who took the initiative in order to reach an agreement along these lines confined himself to proposing the maintenance of the status quo in the foreign settlements ;
And it is not to be presumed that the delegate of Great Britain, in presenting a project worked out on the basis of said proposition, intended to make a restriction with regard to the buildings, which is neither shown by the words inserted in the record nor by the purport of the article proposed by him;
And, in order to maintain the status quo integrally, it would not be sufficient to admit that the fiscal immunity, which up to that time had extended to both lands and buildings in the foreign settlement, should be maintained with regard to the soil only and that it should cease to exist as far as the houses are concerned ;
And this must especially be the case if we consider that, in order to conform to what had been agreed upon, the parties did not con- fine themselves to drawing up a provision with regard to the con- firmation of the leases, but added that no conditions whatsoever other than those contained in such existing leases shall be imposed with respect to such property;
And this latter clause is worded still more explicitly in the treaty with France;
And whereas, moreover, the Powers did not speak of lands in the clauses in question as they must necessarily have done if the immunity, contrary to what had been practiced up to that time, ought to have been confined to the lands ;
84 THE HAGUE COURT REPORTS
And whereas, on the contrary, they employed expressions which were broad enough to comprise the entire situation created by the leases for the lessees;
And whereas the tribunal can not, either, admit that the notes exchanged between the German and Japanese Governments at the time of conclusion of the new treaty contained explanations of such a nature as to place Germany in any less favorable situation than the other two Powers ;
And whereas the Japanese Government has desired above all to derive an argument from the fact that the German Government based fiscal immunity on the fact that foreigners are prohibited from acquiring ownership to lands situated in Japan, but it is necessary in this regard to consider that the buildings had really always had the character of appurtenances of the lands from the standpoint of taxes, and it can not be presumed that the German Government in- tended to renounce the advantages allowed in favor of Great Britain by the new treaty, which would moreover be in contradiction with the clause assuring to Germany the treatment of the most- favored nation ;
Therefore, the tribunal of arbitration, by majority of votes, de- cides and declares:
The provisions of the treaties and other engagements mentioned in the arbitration protocols not only exempt the lands held by virtue of the perpetual leases granted by the Japanese Government or in its name, but they exempt the lands and the buildings of every nature constructed or which may be constructed on these lands from all imposts, taxes, charges, contributions, or conditions whatsoever ether than those expressly stipulated in the leases in question.
Done at The Hague, in the building of the Permanent Court of Arbitration, on May 22, 1905.
(Signed) G. GRAM
L. RENAULT
At the time of the proceeding to the signature of the present award, availing myself of the privilege conferred by Article 52, para- graph 2, of the Convention for the pacific settlement of international disputes, concluded at The Hague on July 29, 1899, I wish to state
THE JAPANESE HOUSE TAX CASE 85
my absolute disagreement with the majority of the tribunal with regard to both the grounds and the decision of the award.
(Signed) I. MOTONO
AGREEMENT FOR ARBITRATION
Protocol between Great Britain and Japan for submitting to arbitra- tion certain questions as to the interpretation of treaties with Japan with regard to leases held in perpetuity. — Signed at Tokio, August 28, /po-?.1
Whereas, a dispute has arisen between the Government of Japan on the one side and the Governments of Great Britain, France and Ger- many on the other, respecting the true intent and meaning of the fol- lowing provisions of the treaties and other engagements respectively existing between them, that is to say :
Paragraph 4, Article 18, of the treaty of commerce and navigation of April 4, 1896, between Japan and Germany: "Sobald diese Einver- leibung erfolgt," [that is to say: when the several foreign settlement^ in Japan shall have been incorporated with the respective Japanese communes], "sollen die bestehenden, zietlich unbegrenzten Ueberlas- sungsvertrage, unter welchen jetzt in den gedachten Niederlassungen Grundstiicke besessen werden, bestatigt und hinsichtlich dieser Grund- stucke sollen keine Bedingungen irgend einer anderen Art auferlegt werden, als sie in den bestehenden Ueberlassungsvertragen enthalten sind"2 ; and § 3 of the complementary communication of the same date from the German Secretary for Foreign Affairs to the Japanese Minis- ter at Berlin : "3, dass, da das Eigenthum an den im Artikel XVIII des Vertrages erwahnten Niederlassungsgrundstiicken dem Japanischen Staate verbleibt, die Besitzer oder deren Rechtsnachfolger fur ihre Grundstucke ausser dem kontraktmassigen Grundzins Abgaben oder Steuern irgend welcher Art nicht zu entrichten haben werden"3; and
1Official report, p. 13. Similar protocols between France and Japan and be- tween Germany and Japan were also signed on August 28, 1902. For the original German and French texts, see Appendix, pp. 457, 461.
TRANSLATION : When such incorporation takes place f 1, the existing
leases in perpetuity under which property is now held in the said settlements shall be confirmed, and no conditions whatsoever other than those contained in such existing leases shall be imposed in respect of such property.
"TRANSLATION: 3. That, as the proprietary rights in the settlements men- tioned in Article 18 of the treaty continue to belong to the Japanese State, the owners or their legal successors shall not have to pay duties or taxes of any kind for their land except the contract ground rent.
86 THE HAGUE COURT REPORTS
the clause in the reply of the Japanese Minister of the same date, to the foregoing communication: "dass die darin unter Nummer 1 bis 4 zum Ausdruck gebrachten Voraussetzungen, welche den Erwerb ding- licher Rechte an Grundstiicken, die Errichtung von Waarenhausern, die Steuerfreiheit der Grundstucke in den Fremdenniederlassungen und die Erhaltung wohlerworbener Rechte nach Ablauf des Vertrages zum Gegenstande haben, in alien Punkten zutreffend sind"1 ;
Paragraph 4, Article 21, of the revised treaty of August 4, 1896, between Japan and France: "Lorsque les changements ci-dessus indi- ques auront ete effectues," [that is to say: when the several foreign settlements in Japan shall have been incorporated with the respective Japanese communes and made a part of the municipal system of Japan; and when the competent Japanese authorities shall have as- sumed all municipal obligations and duties, and the municipal funds and property belonging to such settlements shall have been transferred to said Japanese authorities], "les baux a perpetuite en vertu desquels les etrangers possedent actuellement des proprietes dans les quartiers seront confirmed, et les proprietes de cette nature ne donneront lieu a aucuns impots, taxes, charges, contributions ou conditions quelcon- ques autres que ceux expressement stipules dans les baux en ques- tion"3; and
Paragraph 4, Article 18, of the revised treaty of July 16, 1894, be- tween Japan and Great Britain: "When such incorporation takes place [that is to say, when the several foreign settlements in Japan shall have been incorporated with the respective Japanese communes], existing leases in perpetuity under which property is now held in the said settlements shall be confirmed, and no conditions whatsoever other than those contained in such existing leases shall be imposed in respect of such property" ; and
Whereas, the controversy is not amenable to ordinary diplomatic methods; and
Whereas, the Powers at variance, co-signatories of the Convention of The Hague for the peaceful adjustment of international differences,
TRANSLATION : That he entirely indorses^the explanatory statements set forth therein, in Nos. 1 to 4, concerning the acquisition of real rights in landed prop- erty, the construction of warehouses, the freedom from taxation in the foreign settlements, and the preservation of duly-acquired rights after the expiration of the treaty.
ZTRANSLATION : When the changes above indicated shall have taken place
[ ], the leases in perpetuity, in virtue of which foreigners now
possess property in the settlements, shall be confirmed, and property of that character shall not be subject to any duties, taxes, charges, contributions or conditions whatsoever, other than those expressly stipulated in the leases in question.
THE JAPANESE HOUSE TAX CASE 87
have resolved to terminate the controversy by referring the question at issue to impartial arbitration in accordance with the provisions of said convention;
The said Powers have, with a view to carry out that resolution, authorized the following representatives, that is to say:
The Government of Great Britain: Sir Claude Maxwell MacDon- ald, G. C. M. G., K. C. B., His Britannic Majesty's Envoy Extraor- dinary and Minister Plenipotentiary ;
The Government of France: Monsieur G. Dubail, Minister Pleni- potentiary, Charge d' Affaires of France;
The Government of Germany : Count von Arco Valley, Envoy Ex- traordinary and Minister Plenipotentiary of His Majesty the German Emperor, King of Prussia;
The Government of Japan: Baron Komura Jutaro, His Imperial Japanese Majesty's Minister of State for Foreign Affairs ; to conclude the following protocol:
1
The Powers in difference agree that the arbitral tribunal, to which the question at issue is to be submitted for final decision, shall be com- posed of three members who are members of the Permanent Court of Arbitration of The Hague, to be selected in the following manner:
Each party, as soon as possible and not later than two months after the date of this protocol, to name one arbitrator, and the two arbi- trators so named together to choose an umpire. In case the two arbi- trators fail for the period of two months after their appointment to choose an umpire, His Majesty the King of Sweden and Norway shall be requested to name an umpire.
The question at issue upon which the parties to this arbitration request the arbitral tribunal to pronounce a final decision, is as follows :
Whether or not the provisions of the treaties and other engagements above quoted exempt only land held under leases in perpetuity granted by or on behalf of the Japanese Government, or land and buildings of whatever description constructed or which may hereafter be con- structed on such land, from any imposts, taxes, charges, contributions, or conditions whatsoever, other than those expressly stipulated in the leases in question.
88 THE HAGUE COURT REPORTS
Within eight months after the date of this protocol, each party shall deliver to the several members of the arbitral tribunal and to the other party complete written or printed copies of the case, evidence and arguments upon which it relies in the present arbitration. And not later than six months thereafter a similar delivery shall be made of written or printed copies of the counter-cases, additional evidence, and final arguments of the two parties ; it being understood that such counter-cases, additional evidence and final arguments, shall be lim- ited to answering the principal cases, evidence, and arguments pre- viously delivered.
4
Each party shall have the right to submit to the arbitral tribunal as evidence in the case all such documents, records, official correspon- dence, and other official or public statements or acts bearing on the subject of this arbitration as it may consider necessary. But if in its case, counter-case, or arguments submitted to the tribunal either party shall have specified or alluded to any document or paper in its own exclusive possession without annexing a copy, such party shall be bound, if the other party thinks proper to apply for it, to furnish that party with a copy thereof within thirty days after such application is made.
5
Either party may, if it thinks fit, but subject to the right of reply on the part of the other party within such time as may be fixed by the arbitral tribunal, present to the tribunal for such action as the tribunal may deem proper a statement of objections to the counter-case, addi- tional evidence, and final arguments of the other party if it is of opinion that those documents or any of them are irrelevant, erroneous, or not strictly limited to answering its principal case, evidence, and argu- ments.
6
No papers or communications other than those contemplated by sec- tions 3 and 5 of this protocol, either written or oral, shall be admitted or considered in the present arbitration unless the arbitral tribunal shall request from either party additional or supplementary explanation or information to be given in writing. If the explanation or information is given, the other party shall have the right to present a written reply within such time as may be fixed by the arbitral tribunal.
THE JAPANESE HOUSE TAX CASE 89
The tribunal shall meet at a place to be designated later by the parties as soon as practicable, but not earlier than two months nor later than three months after the delivery of the counter-cases as pro- vided in section 3 of this protocol, and shall proceed impartially and carefully to examine and decide the question at issue. The decision of the tribunal shall, if possible, be pronounced within one month after the president thereof shall have declared the arbitral hearing- closed.
8
For the purposes of this arbitration, the Government of Japan shall be regarded as one party and the Governments of Great Britain, France, and Germany, jointly, shall be regarded as the other party.
So far as is not otherwise provided in this protocol, the provisions of the Convention of The Hague for the peaceful adjustment of inter- national differences shall apply to this arbitration.
Done at Tokio, this 28th day of August, 1902, corresponding to the 28th day of the 8th month of the 35th year of Meiji.
(Signed) CLAUDE M. MACDONALD (Signed) JUTARO KOMURA
ADDITIONAL DOCUMENTS
Extract from the Treaty of Commerce and Navigation bet^veen Great Britain and Japan, signed at London, July 16, 1894*
18. Her Britannic Majesty's Government, so far as they are con- cerned, give their consent to the following arrangement:
The several foreign settlements in Japan shall be incorporated with the respective Japanese communes, and shall thenceforth form part of the general municipal system of Japan.
The competent Japanese authorities shall thereupon assume all municipal obligations and duties in respect thereof, and the common funds and property, if any, belonging to such settlements, shall at the same time be transferred to the said Japanese authorities.
When such incorporation takes place the existing leases in perpetuity under which property is now held in the said settlements shall be con- firmed, and no conditions whatsoever other than those contained in
^British and Foreign State Papers, vol. 86, p. 46.
90 THE HAGUE COURT REPORTS
such existing leases shall be imposed in respect of such property. It is, however, understood that the consular authorities mentioned in the same are in all cases to be replaced by the Japanese authorities.
All lands which may previously have been granted by the Japanese Government free of rent for the public purposes of the said settle- ments shall, subject to the right of eminent domain, be permanently reserved free of all taxes and charges for the public purposes for which they were originally set apart.
19. The stipulations of the present treaty shall be applicable, so far as the laws permit, to all the colonies and foreign possessions of Her Britannic Majesty, excepting to those hereinafter-named, that is to say, except
India Victoria
The Dominion of Canada Queensland
Newfoundland Tasmania
The Cape South Australia
Natal Western Australia
New South Wales New Zealand
Provided always that the stipulations of the present treaty shall be made applicable to any of the above-named colonies or foreign posses- sions on whose behalf notice to that effect shall have been given to the Japanese Government by Her Britannic Majesty's representative at Tokio within two years from the date of the exchange of ratifica- tions of the present treaty.
20. The present treaty shall, from the date it comes into force, be substituted in place of the conventions respectively of the 23d day of the 8th month of the 7th year of Kayei, corresponding to the 14th day of October, 1854, and of the 13th day of the 5th month of the 2nd year of Keiou, corresponding to the 25th day of June, 1866, the treaty of the 18th day of the 7th month of the 5th year of Ansei, cor- responding to the 26th day of August, 1858, and all arrangements and agreements subsidiary thereto concluded or existing between the high contracting Parties; and from the same date such conventions, treaty, arrangements, and agreements shall cease to be binding, and, in con- sequence, the jurisdiction then exercised by British courts in Japan, and all the exceptional privileges, exemptions, and immunities then enjoyed by British subjects as a part of or appurtenant to such juris- diction, shall absolutely and without notice cease and determine, and thereafter all such jurisdiction shall be assumed and exercised by Japanese courts.
THE JAPANESE HOUSE TAX CASE 91
Extract from the Treaty of Commerce and Navigation between Ger- many and Japan, signed at Berlin, April 4, 1896 *
18. The contracting Parties have agreed upon the following ar- rangement :
The several foreign settlements in Japan shall be incorporated with the respective Japanese communes, and shall thenceforth form integral parts of the Japanese communes.
The competent Japanese authorities shall thereupon assume all municipal obligations and duties in respect thereof, and the common funds and property, if any, belonging to such settlements, shall at the same time be transferred to the said Japanese authorities.
When such incorporation takes place the existing leases in perpetuity under which property is now held in the said settlements shall be con- firmed, and no conditions whatsoever other than those contained in such existing leases shall be imposed in respect of such property.
The proprietary rights in the lands belonging to these settlements may in the future be granted to natives or foreigners by their pro- prietors free of charge and without the consent of the consular or Japanese authorities, as has hitherto been required in certain cases.
The functions, however, attached according to the original leases to the consular authorities, shall devolve upon the Japanese author- ities.
All lands which may previously have been granted by the Japanese Government free of rent for the public purposes of the said settle- ments shall, subject to the right of eminent domain, be permanently reserved free of all taxes and charges for the public purposes for which they were originally set apart.
19. The stipulations of the present treaty shall be applicable to the territories which now, or shall in future, form a customs union with one or other of the contracting Parties.
20. The present treaty shall, from the date it comes into force, be substituted in place of the treaty of the 20th February, 1869, and all arrangements and agreements subsidiary thereto concluded or exist- ing between the high contracting Parties. From the same date these earlier conventions shall cease to be binding, and, in consequence, the jurisdiction till then exercised by German courts in Japan, and all the exceptional privileges, exemptions, and immunities then enjoyed by German subjects as a part of or appurtenant to such jurisdiction, shall absolutely and without notice cease and determine. Thereafter all such jurisdiction shall be assumed and exercised by Japanese courts.
^British and Foreign State Papers, vol. 88, p. 588 For the original German text, see Appendix, p. 464.
92 THE HAGUE COURT REPORTS
Extract from the Treaty of Commerce and Navigation between France and Japan, signed at Paris, August 4, i8p6l
21. The Government of the French Republic, so far as it is con- cerned, gives its consent to the following arrangement :
The several foreign settlements existing in Japan shall be incor- porated in the respective Japanese communes and shall thenceforth form a part of the municipal system of Japan.
The competent Japanese authorities shall thereupon assume all municipal obligations and powers resulting from this new state of affairs, and the municipal funds and property belonging to such settlements shall, at the same time, be transferred to the said Japanese authorities.
When the changes above indicated shall have taken place, the leases in perpetuity, in virtue of which foreigners now possess property in the settlements, shall be confirmed, and property of that character shall not be subject to any duties, taxes, charges, contributions, or condi- tions whatsoever, other than those expressly stipulated in the leases in question. It is understood, however, that the consular authorities men- tioned in the same shall be replaced by Japanese authorities.
Those lands which the Japanese Government may have previously exempted from the payment of rent, in view of the fact that they were used for public purposes, shall, subject to the right of eminent domain, be permanently reserved free of all duties, taxes, and charges ; and they shall never be diverted to other uses than those for which they were originally intended.
22. The provisions of the present treaty shall be applicable to Al- geria. It is understood that they shall also be applicable to all French colonies for which the French Government shall claim the privilege. The representative of the French Republic at Tokio shall, to this end, notify the Japanese Government of such colonies within a period of ten days, dating from the day of the exchange of ratifications of the present treaty.
23. From the date that the present treaty becomes operative, the treaty of October 9, 1858, the convention of June 25, 1866, and, in general, all the agreements concluded between the high contracting Parties prior to this date shall be abrogated. In consequence, French jurisdiction in Japan, and all privileges, exemptions or immunities en- joyed by French subjects resulting therefrom, shall cease absolutely and without notice from the day that the present treaty becomes op- erative ; and thereafter French subjects shall submit to the jurisdiction of the Japanese tribunals.
1 Translation. For the original French text, see Appendix, p. 465.
THE MUSCAT DHOWS CASE
between
FRANCE and GREAT BRITAIN Decided August 8, 1905
Syllabus
In an adjustment of conflicting interests, Great Britain and France, on March 10, 1862,1 signed a declaration in which they engaged recip- rocally to respect the independence of the Sultan of Muscat. Subse- quently, France, acting under the treaty of November 17, 1844,2 with the Sultan, adopted the practice of issuing to certain of his subjects papers authorizing them to fly the French flag upon dhows or vessels carrying on the coastwise trade in the Indian Ocean, the Red Sea, and the Persian Gulf and also commonly employed in the slave trade from the east coast of Africa. After the signature, on July 2, 1890, of the General Act of Brussels8 for the repression of the African slave trade, Great Britain protested that the issuance of such authorizations to natives and the privileges and immunities claimed by them there- under affected the jurisdiction of the Sultan over his subjects in dero- gation of the engagements entered into by France and Great Britain in the declaration of 1862. Failing a settlement through diplomatic channels, the question was referred by a compromis signed October 13, 1904,* to a tribunal consisting of Heinrich Lammasch of Austria, A. F. de Savornin Lohman of Holland, and Chief Justice Melville W. Fuller of the United States. The sessions began July 25, 1905, and ended August 2, 1905, the decision being rendered on August 8, 1905.
The tribunal decided that:
(1) Every sovereign may decide to whom it will accord the right to fly its flag and to prescribe the rules governing its use, and the granting of the right to subjects of another sovereign constitutes no attack upon the latter's independence.
(2) This right of France was, however, limited by Article 32 of the General Act of Brussels, which went into effect on January 2, 1892, under which both France and Great Britain as signatories agreed to grant authority to fly their flags only to native vessels owned or fitted out by their subjects or proteges. The latter term was defined to mean the subjects of a protectorate of the Power in question ; the indi- viduals enumerated in the Ottoman law of 1863, which was accepted by the Powers who enjoy the capitulations, and in the treaty between France and Morocco of the same year, acceded to by other Powers
iPost, p. 103. zPost, p 103.
8For Articles 30 et seq. of this Act, see post, p. 104.
'Post. o. 101.
94 THE HAGUE COURT REPORTS
and confirmed by the convention of Madrid, of 1880; persons recog- nized as proteges by special treaties; and individuals who were con- sidered and treated as proteges by the Power in question before the creation of xnew proteges was regulated and limited in 1863.
(3) The restriction on the creation of proteges in Turkey and Mo- rocco applies by analogy to other Oriental States, but, owing to the difference in racial conditions in Turkey and Muscat, the right of in- heritance of the status of protege conceded by Turkey can not be extended by analogy to Muscat.
(4) The French-Muscat treaty of 1844, specially recognizing cer- tain persons as French proteges, applies only to persons bona Ude in the service of French subjects, and not to persons who ask for ship's papers simply for the purpose of carrying on commerce under the French flag; but the granting of such papers prior to the ratification of the Act of Brussels was not in violation of any international obliga- tion of France.
Held: That before January 2, 1892, France was entitled to author- ize vessels belonging to the subjects of Muscat to fly the French flag, and that such grantees are entitled to retain their authorizations as long as France renews them ; but, after the above-mentioned date, France was not entitled to grant such authorizations except when the owners or fitters-out of the vessels had established or could establish the fact that they were considered and treated as French proteges before 1863.
Concerning the privileges and immunities of natives in possession of such papers, the tribunal decided that the treaty between France and Muscat of 1844 prohibiting without the authorization of the French consul the entry or search of houses, warehouses and other property possessed or occupied by French citizens or persons in their employ, was comprehensive enough to include the prohibition of the entry of vessels, but Articles 31-41 of the General Act of Brussels limits the grant of the right to fly the national flag to that particular vessel and its owner, and the right is not transferable to any other person or vessel.
The provision of the treaty of 1844, which accords French protec- tion to persons in the employ of French citizens, does not include the owners, masters and crews of dhows authorized to fly the French flag or the members of their families, and the withdrawal of these persons from the sovereignty and jurisdiction of the Sultan would be a viola- tion of the declaration of 1862.
Held: That dhows of Muscat authorized, as aforesaid, to fly the French flag are entitled in the territorial waters of Muscat to the in- violability provided by the French-Muscat treaty of 1844, but the right can not be transmitted to any other person or dhow, and the owners, masters, and crews of such dhows or members of their families do not enjoy any right of extraterritoriality which exempts them from the jurisdiction of the Sultan of Muscat.
THE MUSCAT DHOWS CASE 95
AWARD OF THE TRIBUNAL
Award of the arbitration tribunal appointed to decide on the ques- tion of the grant of the French Hag to Muscat dhows. — The Hague, August 8, 1905*
The tribunal of arbitration constituted in virtue of the compro- mis concluded at London on October 13, 1904,2 between Great Britain and France;
Whereas the Government of His Britannic Majesty and that of the French Republic have thought it right by the declaration of March 10, 1862,3 "to engage reciprocally to respect the indepen- dence" of His Highness the Sultan of Muscat ;
Whereas difficulties as to the scope of that declaration have arisen in relation to the issue, by the French Republic, to certain subjects of His Highness the Sultan of Muscat of papers authoriz- ing them to fly the French flag, and also as to the nature of the privileges and immunities claimed by subjects of His Highness who are owners or masters of dhows and in possession of such papers or are members of the crew of such dhows and their families, especially as to the manner in which such privileges and immunities affect the jurisdiction of His Highness the Sultan over his said subjects;
Whereas the two Governments have agreed by the compromis of October 13, 1904, that these questions shall be determined by ref- erence to arbitration, in accordance with the provisions of Article 1 of the convention concluded between the two Powers on the 14th of October, 1903 ;*
Whereas in virtue of that compromis were named as arbitrators,
by the Government of His Britannic Majesty:
Mr. Melville W. Fuller, Chief Justice of the United States of America, and
by the Government of the French Republic :
Jonkheer A. F. de Savornin Lohman, Doctor of Law, former Minister of the Interior of the Netherlands, former professor at the
1Official report, p. 69. For the original French text, see Appendix, p. 467. *Post, p. 101. *Post, p. 103. *A treaty of general arbitration.
96 THE HAGUE COURT REPORTS
free University at Amsterdam, member of the Second Chamber of the States-General;
Whereas the two arbitrators not having agreed within one month from the date of their appointment in the choice of an umpire, and that choice having then been entrusted, in virtue of Article 1 of the compromis, to the King of Italy, His Majesty has named umpire:
Mr. H. Lammasch, Doctor of Law, professor at the University at Vienna, member of the Upper House of the Austrian Parlia- ment;
Whereas the cases, counter-cases and arguments have been duly communicated to the tribunal and to the parties ;
Whereas the tribunal has carefully examined these documents, and the supplementary observations which were delivered to it by the two parties;
As to the first question:
Whereas generally speaking it belongs to every sovereign to de- cide to whom he will accord the right to fly his flag and to prescribe the rules governing such grants, and whereas, therefore, the grant- ing of the French flag to subjects of His Highness the Sultan of Muscat in itself constitutes no attack on the independence of the Sultan;
Whereas nevertheless a sovereign may be limited by treaties in the exercise of this right, and whereas the tribunal is authorized in virtue of Article 48 of the Convention for the pacific settlement of international disputes of July 29, 1899, and of Article 5 of the compromis of October 13, 1904, "to declare its competence in inter- preting the compromis as well as the other treaties which may be invoked in the case, and in applying the principles of international law," and whereas therefore the question arises, under what condi- tions Powers which have acceded to the General Act of the Brussels Conference of July 2, 1890,1 relative to the African slave trade, especially to Article 32 of this Act, are entitled to authorize native vessels to fly their flags ;
Whereas by Article 32 of this Act the faculty of the signatory Powers to grant their flag to native vessels has been limited for the purpose of suppressing slave trading and in the general interests of humanity, irrespective of whether the applicant for the flag may
!For Articles 30 et seq. of this Act, see post, p. 104.
THE MUSCAT DHOWS CASE 97
belong to a State signatory of this Act or not, and whereas at any rate France is in relation to Great Britain bound to grant her flag only under the conditions prescribed by this Act;
Whereas in order to attain the above-mentioned purpose, the sig- natory Powers of the Brussels Act have agreed in its Article 32 that the authority to fly the flag of one of the signatory Powers shall in future only be granted to such native vessels which shall satisfy all the three following conditions:
1. Their fitters-out or owners must be either subjects of or per- sons protected by the Power whose flag they claim to fly ;
2. They must furnish proof that they possess real estate situated in the district of the authority to whom their application is ad- dressed, or supply a solvent security as a guaranty for any fines to which they may eventually become liable ;
3. Such fitters-out or owners, as well as the captain of the vessel, must furnish proof that they enjoy a good reputation, and especially that they have never been condemned for acts of slave trade ;
Whereas in default of a definition of the term protege in the Gen- eral Act of the Brussels Conference this term must be understood in the sense which corresponds best as well to the elevated aims of the conference and its final Act as to the principles of the law of nations, as they have been expressed in treaties existing at that time, in internationally recognized legislation and in international prac- tice ;
Whereas the aim of the said Article 32 is to admit to navigation in the seas infested by slave trade only those native vessels which are under the strictest surveillance of the signatory Powers, a con- dition which can only be secured if the owners, fitters-out, and crews of such vessels are exclusively subjected to the sovereignty and juris- diction of the State under whose flag they are sailing;
Whereas, since the restriction which the term protege underwent in virtue of the legislation of the Ottoman Porte of 1863, 1865, and 1869, especially of the Ottoman law of 23 Sefer, 1280 (August, 1863), implicitly accepted by the Powers who enjoy the rights of capitulations, and since the treaty concluded between France and Morocco in 1863,1 to which a great number of other Powers have
*An agreement of August 19, 1863, relative to the French right of protection in Morocco.
98 THE HAGUE COURT REPORTS
acceded and which received the sanction of the convention of Madrid of July 30, 1880,1 the term protege embraces in relation to states of capitulations only the following classes: first, persons being subjects of a country which is under the protectorate of the Power whose protection they claim; secondly, individuals correspond- ing to the classes enumerated in the treaties with Morocco of 1863 and 1880 and in the Ottoman law of 1863; thirdly, persons who under a special treaty have been recognized as proteges like those enumerated by Article 4 of the French-Muscat convention of 1844,2 and, fourthly, those individuals who can establish that they had been considered and treated as proteges by the Power in question before the year in which the creation of new proteges was regulated and limited, that is to say, before the year 1863, these individuals not having lost the status they had once legitimately acquired.
Whereas that, although the Powers have expresses verbis resigned the exercise of the pretended right to create proteges in unlimited number only in relation to Turkey and Morocco, nevertheless the exercise of this pretended right has been abandoned also in relation to other Oriental States, analogy having always been recognized as a means to complete the very deficient written regulations of the capitulations as far as circumstances are analogous;
Whereas, on the other hand, the conceosion de facto made by Turkey, that the status of proteges be tr nsmitted to the descendants of persons who in 1863 had enjoyed « .e protection of a Christian Power can not be extended by analogy to Muscat, where the cir- cumstances are entirely dissimilar, the proteges of the Christian Powers in Turkey being of race, nationality, and religion different from their Ottoman rulers, whilst the inhabitants of Sur and other Muscat people who might apply for French flags are in all these respects entirely in the same condition as the other subjects of the Sultan of Muscat ;
Whereas the dispositions of Article 4 of the French-Muscat treaty of 1844 apply only to persons who are bona fide in the service of French subjects, but not to persons who ask for ship's papers for the purpose of doing any commercial business;
1 ^n agreement between France, Great Britain, Morocco et al. for the settle- ment of the right of protection in Morocco. *Post, p. 103.
THE MUSCAT DHOWS CASE 99
Whereas the fact of having granted before the ratification of the Brussels Act on January 2, 1892, authorizations to fly the French flag to native vessels not satisfying the conditions prescribed by Article 32 of this Act was not in contradiction with any international obligation to France:
For these reasons decides and pronounces as follows :
1. Before the 2d of January, 1892, France was entitled to author- ize vessels belonging to subjects of His Highness the Sultan of Muscat to fly the French flag, only bound by her own legislation and administrative rules;
2. Owners of dhows, who before 1892 have been authorized by France to fly the French flag, retain this authorization as long as France renews it to the grantee;
3. After January 2, 1892, France was not entitled to authorize vessels belonging to subjects of His Highness the Sultan of Muscat to fly the French flag, except on condition that their owners or filters-out had established or should establish that they had been considered and treated by France as her proteges before the year 1863.
As to the second question :
Whereas the legal situation of vessels flying foreign flags and of the owners of such vessels in the territorial waters of an oriental State is determined by the genr ral principles of jurisdiction, by the capitulations or other treaties and by the practice resulting there- from ;
Whereas the terms of the treaty of friendship and commerce be- tween France and the Iman of Muscat of November 17, 1844, are particularly in view of the language of Article 3, "Nul ne pourra, soitsaiicim prctcxtc, pcnctrer dans les maisonsf magasins et autres proprictcs, posscdcs ou occupes par des Frangais ou par des per- sonnes au service des Frangais, ni les visiter sans le consent euient de I' occupant d moins que cc ne soit avec V intervention du Consul de France" comprehensive enough to embrace vessels as well as other property ;
Whereas, although it can not be denied that by admitting the
1 TRANSLATION • No person shall, under any pretext whatsoever, penetrate or search the houses, warehouses or other property possessed or occupied by French citizens or by persons in the employ of French citizens, without the consent of the occupant, unless authorized by the French Consul.
100 THE HAGUE COURT REPORTS
right of France to grant under certain circumstances her flag to native vessels and to have these vessels exempted from visitation by the authorities of the Sultan or in his name, slave trade is facili- tated, because slave traders may easily abuse the French flag for the purpose of escaping from search, the possibility of this abuse, vvhich can be entirely suppressed by the accession of all Powers to Article 42 of the Brussels convention, can not affect the decision of this case, which must only rest on juridical grounds;
Whereas, according to the Articles 31-41 of the Brussels Act, the grant of the flag to a native vessel is strictly limited to this vessel and its owner and [«•] therefore not transmissible or transferable to any other person or to any other vessel, even if belonging to the same owner;
Whereas Article 4 of the French-Muscat treaty of 1844 grants to those subjects of His Highness the Sultan of Muscat "qui seront au service des Franqais [who are in the employ of French citizens] " the same protection as to the French themselves, but whereas the own- ers, masters, and crews of dhows authorized to fly the French flag do not belong to that class of persons and still less do the members of their families ;
Whereas the withdrawal of these persons from the sovereignty, especially from the jurisdiction of His Highness the Sultan of Muscat, would be in contradiction with the declaration of March 10, 1862, by which France and Great Britain engaged themselves reciprocally to respect the independence of this Prince :
For these reasons decides and pronounces as follows :
1. Dhows of Muscat authorized as aforesaid to fly the French flag are entitled in the territorial waters of Muscat to the inviola- bility provided by the French-Muscat treaty of November 17, 1844;
2. The authorization to fly the French flag can not be transmitted or transferred to any other person or to any other dhow, even if belonging to the same owner ;
3. Subjects of the Sultan of Muscat, who are owners or masters cf dhows authorized to fly the French flag or who are members of the crews of such vessels or who belong to their families, do not enjoy in consequence of that fact any right of extraterritoriality, which could exempt them from the sovereignty, especially from the jurisdiction, of His Highness the Sultan of Muscat.
THE MUSCAT DHOWS CASE 101
Done at The Hague, in the Permanent Court of Arbitration, Au- gust 8, 1905.
(Signed) H. LAMMASCH (Signed) MELVILLE W. FULLER (Signed) A. F. DE SAVORNIN LOHMAN
AGREEMENT FOR ARBITRATION
Agreement between Great Britain and France referring to arbitration the question of the grant of the French Hag to Muscat dhows. — Signed at London, October 13, 1904*
Whereas the Government of His Britannic Majesty and that of the French Republic have thought it right, by the declaration of the 10th March, 1862,2 "to engage reciprocally to respect the independence" of His Highness the Sultan of Muscat;
And whereas difficulties as to the scope of that declaration have arisen in relation to the issue, by the French Republic, to certain sub- jects of His Highness the Sultan of Muscat of papers authorizing them to fly the French flag, and also as to the nature of the privileges and immunities claimed by subjects of His Highness who are owners or masters of dhows and in possession of such papers or are members of the crew of such dhows and their families, especially as to the man- ner in which such privileges and immunities affect the jurisdiction of His Highness the Sultan over his said subjects:
The undersigned, being duly authorized thereto by their respective Governments, hereby agree that these questions shall be determined by reference to arbitration, in accordance with the provisions of Ar- ticle 1 of the convention concluded between the two countries on the 14th October last, and that the decision of the Hague tribunal shall be final.
It is also hereby agreed as follows:
ARTICLE 1
Each of the high contracting Parties shall nominate one arbitrator, and these two arbitrators shall together choose an umpire ; if they can not agree within one month from the date of their appointment, the choice of an umpire shall be entrusted to His Majesty the King of
Official report, p 5. For the French text, see Appendix, p. 471. *Post, p. 103.
102 THE HAGUE COURT REPORTS
Italy. The arbitrators and the umpire shall not be subjects or citizens of either of the high contracting Parties, and shall be chosen from among the members of the Hague tribunal.
ARTICLE 2
Each of the high contracting Parties shall, within three months from the signature of this agreement, deliver to each member of the tribunal hereby constituted, and to the other party, a written or printed case setting forth and arguing its claims, and a written or printed file con- taining the documents or any other evidence in writing or print on which it relies.
Within three months after the delivery of the above-mentioned cases, each of the high contracting Parties shall deliver to each member of the tribunal, and to the other party, a written or printed counter-case, with the documents which support it.
Within one month after the delivery of the counter-cases, each party may deliver to each arbitrator and to the other party a written or printed argument in support of its contentions.
The time fixed by this agreement for the delivery of the case, counter-case, and argument may be extended by the mutual consent of the high contracting Parties.
ARTICLE 3
The tribunal will meet at The Hague within a fortnight of the de- livery of the arguments.
Each party shall be represented by one agent.
The tribunal may, if they shall deem further elucidation with re- gard to any point necessary, require from either agent an oral or written statement, but in such case the other party shall have the right to reply.
ARTICLE 4
The decision of the tribunal shall be rendered within thirty days of its meeting at The Hague or of the delivery of the statements which may have been supplied at its request, unless, on the request of the tribunal, the contracting Parties shall agree to extend the period.
ARTICLE 5
On all points not covered by this agreement, the provisions of the Conventions of The Hague of the 29th July, 1899, shall apply.
Done in duplicate at London, the 13th day of October, 1904.
[L. S.] LANDSDOWNE [L. S.] PAUL CAMBON
THE MUSCAT DHOWS CASE 103
ADDITIONAL DOCUMENTS
Extract from the Treaty of Friendship and Commerce between France and the I man of Muscat, concluded at Zanzibar, November if, 1844*
3. French citizens shall have the right to buy, sell, or lease land, houses, and warehouses in the States of His Highness the Sultan of Muscat. No person shall, under any pretext whatsoever, penetrate or search the houses, warehouses, or other property possessed or occu- pied by French citizens, or by persons in the employ of French citi- zens, without the consent of the occupant, unless authorized by the French consul.
French citizens shall not, under any pretext whatsoever, be detained against their will in the States of the Sultan of Muscat.
4. The subjects of His Highness the Sultan of Muscat who are in the employ of French citizens shall enjoy the same protection as the French citizens themselves ; but, if they commit any crime or misdemeanor punishable by law, they shall be discharged by the French employers and delivered up to the local authorities.
Declaration between Great Britain and France, engaging reciprocally to respect the Independence of the Sultans of Muscat and Zanzi- bar.— Signed at Paris, March 10, 1862?
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and His Majesty the Emperor of the French, taking into consideration the importance of maintaining the independence of His Highness the Sultan of Muscat and His Highness the Sultan of Zanzi- bar, have thought it right to engage reciprocally to respect the inde- pendence of these sovereigns.
The undersigned, Her Britannic Majesty's Ambassador Extraor- dinary and Plenipotentiary at the Court of France, and the Minister Secretary of State for Foreign Affairs of His Majesty the Emperor of the French, being furnished with the necessary powers, hereby de- clare, in consequence, that their said Majesties take reciprocally that engagement.
In witness whereof, the undersigned have signed the present Decla- ration, and have affixed thereto the seals of their arms.
Done at Paris, the 10th March, 1862.
[L. S.] COWLEY
fL. S.] E. THOUVENEL
3 Translation. For the original French text, see Appendix, p. 473 ^British and Foreign State Papers, vol. 57, p. 785. For the French text, see Appendix, p. 473.
104 THE HAGUE COURT REPORTS
Extract from the General Act of Brussels of July 2, 1890, for the Sup- pression of the African Slave Trade1
SECTION II. — REGULATION CONCERNING THE USE OF THE FLAG AND SUPERVISION BY CRUISERS
1. RULES FOR GRANTING THE FLAG TO NATIVE VESSELS, AND AS TO CREW LIST AND MANIFESTS OF BLACK PASSENGERS ON BOARD
ARTICLE 30
The signatory Powers engage to exercise a strict surveillance over native vessels authorized to carry their flag in the zone mentioned in Article 21, and over the commercial operations carried on by such vessels.
ARTICLE 31
The term "native vessel" applies to vessels fulfilling one of the following conditions :
1. It shall present the outward appearance of native build or rigging.
2. It shall be manned by a crew of whom the captain and a major- ity of the seamen belong by origin to one of the countries on the coast of the Indian Ocean, the Red Sea, or the Persian Gulf.
ARTICLE 32
The authorization to carry the flag of one of the said Powers shall in future be granted only to such native vessels as shall satisfy at the same time the three following conditions:
1. Fitters-out or owners of ships must be either subjects of or per- sons protected by the Power whose flag they ask to carry.
2. They shall be obliged to prove that they possess real estate situ- ated in the district of the authority to whom their application is ad- dressed, or to furnish bona fide security as a guaranty of the payment of such fines as may be incurred.
3. The above-named fitters-out or owners of ships, as well as the captain of the vessel, shall prove that they enjoy a good reputation, and that in particular they have never been sentenced to punishment for acts connected with the slave trade.
translation. For the original French text, see Appendix, p. 474.
THE MUSCAT DHOWS CASE 105
ARTICLE 33
This authorization granted shall be renewed every year. It may at any time be suspended or withdrawn by the authorities of the Power whose colors the vessel carries.
ARTICLE 34
The act of authorization shall contain the statements necessary to establish the identity of the vessel. The captain shall have the keep- ing thereof. The name of the native vessel and the amount of its ton- nage shall be cut and painted in Latin characters on the stern, and the initial or initials of the name of the port of registry, as well as the registration number in the series of the numbers of that port, shall be printed in black on the sails.
ARTICLE 35
A list of the crew shall be issued to the captain of the vessel at the port of departure by the authorities of the Power whose colors it carries. It shall be renewed at every fresh venture of the vessel, or, at the latest, at the end of a year, and in accordance with the following provisions :
1. The vessel shall be visaed at the departure of the vessel by the authority that has issued it.
2. No negro can be engaged as a seaman on a vessel without having previously been questioned by the authority of the Power whose colors it carries, or, in default thereof, by the territorial authority with a view to ascertaining the fact of his having contracted a free engage- ment.
3. This authority shall see that the proportion of seamen and boys is not out of proportion to the tonnage or rigging.
4. The authorities who shall have questioned the men before their departure shall enter them on the list of the crew in which they shall be mentioned with a summary description of each of them alongside his name.
5. In order the more effectively to prevent any substitution, the sea- men may, moreover, be provided with a distinctive mark.
ARTICLE 36
When the captain of a vessel shall desire to take negro passengers on board, he shall make his declaration to that effect to the authority of the Power whose colors he carries, or in default thereof, to the
106 THE HAGUE COURT REPORTS
territorial authority. The passengers shall be questioned, and after it has been ascertained that they embarked of their own free will, they shall be entered in a special manifest, bearing the description of each of them alongside of his name, and specially sex and height. Negro children shall not be taken as passengers unless they are accompanied by their relations, or by persons whose respectability is well known. At the departure, the passenger roll shall be visaed by the aforesaid authority after it has been called. If there are no passengers on board, this shall be specially mentioned in the crew-list.
ARTICLE 37
At the arrival at any port of call or of destination, the captain of the vessel shall show to the authority of the Power whose flag he carries, or, in default thereof, to the territorial authority, the crew- list, and, if need be, the passenger-roll previously delivered. The authority shall check the passengers who have reached their destination or who are stopping in a port of call, and shall mention their landing in the roll. At the departure of the vessel, the same authority shall affix a fresh visa to the list and roll, and call the roll of the passen- gers.
ARTICLE 38
On the African coast and on the adjacent islands, no negro pas- sengers shall be taken on board of a native vessel, except in localities where there is a resident authority belonging to one of the signatory Powers.
Throughout the extent of the zone mentioned in Article 21, no negro passenger shall be landed from a native vessel except at a place in which there is a resident officer belonging to one of the high contract- ing Powers, and unless such officer is present at the landing.
Cases of force majeure that may have caused an infraction of these provisions shall be examined by the authority of the Power whose colors the vessel carries, or, in default thereof, by the territorial author- ity of the port at which the vessel in question calls.
ARTICLE 39
The provisions of Articles 35, 36, 37, and 38 are not applicable to vessels only partially decked, having a crew not exceeding ten men, and fulfilling one of the two following conditions :
1. That it be exclusively used for fishing within the territorial waters.
THE MUSCAT DHOWS CASE 107
2. That it be occupied in the petty coasting trade between the differ- ent ports of the same territorial Power, without going further than five miles from the coast.
These different boats shall receive, as the case may be, a special license from the territorial or consular authority, which shall be re- newed every year, and subject to revocation as provided in Article 40, the uniform model of which license is annexed to the present General Act and shall be communicated to the international information office.
ARTICLE 40
Any act or attempted act connected with the slave trade that can be legally shown to have been committed by the captain, fitter-out, or owner of a ship authorized to carry the flag of one of the signatory Powers, or having procured the license provided for in Article 39, shall entail the immediate withdrawal of the said authorization or license. All violations of the provisions of section 2 of Chapter III shall render the person guilty thereof liable to the penalties provided by the special laws and ordinances of each of the contracting Parties.
ARTICLE 41
The signatory Powers engage to deposit at the international infor- mation office the specimen forms of the following documents :
1. License to carry the flag;
2. The crew-list;
3. The negro passenger list.
These documents, the tenor of which may vary according to the different regulations of each country, shall necessarily contain the fol- lowing particulars, drawn up in one of the European languages :
1. As regards the authorization to carry the flag:
(a) The name, tonnage, rig, and the principal dimensions of the vessel ;
(6) The register number and the signal letter of the port of registry ;
(c) The date of obtaining the license, and the office held by the person who issued it.
2. As regards the list of the crew :
(a) The name of the vessel, of the captain and the fitter-out or owner ;
(b) The tonnage of the vessel;
(c) The register number and the port of registry, its destination, as well as the particulars specified in Article 25.
108 THE HAGUE COURT REPORTS
3. As regards the list of negro passengers :
The name of the vessel which conveys them, and the particulars in- dicated in Article 36, for the proper identification of the passengers.
The signatory Powers shall take the necessary measures so that the territorial authorities or their consuls may send to the same office certi- fied copies of all authorizations to carry their flag as soon as such authorizations shall have been granted, as well as notices of the with- drawal of any such authorization.
The provisions of the present article have reference only to papers intended for native vessels.
Agreement, supplementary to the agreement for arbitration, proinding that the term for the delivery of the cases shall be extended to Feb- ruary i, 1905. — Signed at London, January 13, 1905*
The formation of the arbitral tribunal established by the agree- ment signed at London on the 13th October, 1904,2 having been de- layed for some days by circumstances beyond the control of the high contracting Parties, the Government of His Britannic Majesty and the Government of the French Republic have agreed that it is desirable to avail themselves of the power granted to them by paragraph 4 of Ar- ticle 2 of the said agreement to extend the period fixed for the deliv- ery of the case.
They therefore hereby agree to fix the 1st February as the date on which the case or documents shall be delivered by the parties to the members of the arbitral tribunal and the two Governments concerned.
It is also agreed that the successive periods fixed by Article 2 of the agreement for the several stages of the procedure in the arbitration shall date from the 1st February instead of from the 13th January, the date fixed by the terms of the agreement signed by Lord Lans- downe and M. Paul Cambon on the 13th October, 1904.
Done in duplicate, at London, the 13th day of January, 1905.
[L. S.] LANSDOWNE [L. S.] PAUL CAMBON
1 Official report, p. 9. For the French text, see Appendix, p. 477. *~Antc, p. 101.
THE MUSCAT DHOWS CASE 109
Agreement supplementary to the agreement for arbitration, providing that the period fixed for the delivery of the argument shall be ex- tended to a date to be fixed by the arbitral tribunal. — Signed at London, May 19, 1905*
The constitution of the arbitral tribunal created by the agreement signed at London on October 13, 1904, having been delayed for some days owing to circumstances beyond the control of the high contract- ing Parties, the Government of His Britannic Majesty and the Gov- ernment of the French Republic have, by mutual consent, deemed it expedient to avail themselves of the power granted to them by para- graph four of Article 2 of the said agreement to extend the period fixed for the delivery of the arguments.
They therefore hereby agree to leave to the arbitral tribunal the duty of fixing the date on which the members of the said tribunal and the two Governments concerned shall receive the arguments pre- sented by the parties.
This additional agreement shall be communicated to the arbitral tribunal through the medium of the International Bureau of the Permanent Court of Arbitration.
Done in duplicate at London, the 19th day of May, 1905.
(L. S.) LANSDOWNE (L. S.) PAUL CAMBON
1Official report, p. 11. For the French text, see Appendix, p. 477.
THE CASABLANCA CASE
between
FRANCE and GERMANY Decided May 22, 1909
Syllabus
This arbitration arose from a conflict of jurisdiction between the French military authorities in occupation of Casablanca, Morocco, and the German consul, acting under the extraterritorial jurisdiction of his Government in Morocco.
In the fall of 1908 six soldiers belonging to the French Foreign Legion stationed at Casablanca, three of whom subsequently turned out to be of German nationality, deserted and applied to the German consul for protection and were granted by him safe conduct to their homes. Before they could be embarked, however, they were forcibly arrested by French soldiers and taken from the protection of the consul. France protested that Germany had no right to afford pro- tection to persons in Morocco not of German nationality; that the territory in her military occupancy in Morocco was subject to her exclusive jurisdiction, and, therefore, that Germany had no right to attempt to protect the three deserters of German nationality. Ger- many claimed that the deserters of German nationality were, by virtue of the extraterritorial jurisdiction of Germany in Morocco, subject exclusively to the jurisdiction and protection of the German consul at Casablanca, that the forcible arrest of the deserters was a breach of the inviolability of her consular agents, and she demanded that the three Germans be delivered up.
Failing a diplomatic settlement, the case was referred by a compromis signed November 24, 1908,1 to a tribunal selected from the Permanent Court as follows: K. Hj. L. Hammarskjold of Sweden, Sir Edward Fry of England, Louis Renault of France, Guido Fusinato of Italy, and J. Kriege of Germany. The sessions began May 1, 1909, and ended May 17, 1909, the decision being rendered on May 22, 1909.
The tribunal decided that the conflict between the two jurisdictions could not be determined by any absolute and general rule, but that, under the circumstances of this case, the deserters of German nation- ality who belonged to the French military forces stationed at and in control of the fortified city of Casablanca were subject to the ex- clusive military jurisdiction of France while they remained within the territory occupied and controlled by her forces. Owing to the com- plexity of the question of the conflict of jurisdiction, however, the
*Post, p. 117.
THE CASABLANCA CASE 111
tribunal held that no blame attached to the German consul for granting protection to such deserters, but the secretary of the consulate was held guilty of a grave violation of his duties for obtaining the protection of the consul for the deserters not of German nationality. The tribunal further held that the French military authorities should have respected the authority of the German consul by leaving the deserters in his possession until the question of jurisdiction could be decided, taking only such steps as were necessary to prevent their escape. The use of force by the French soldiers was declared to be unwarranted, but, in view of the tribunal's previous holding that the military jurisdiction of France took precedence over the extraterritorial jurisdiction of Germany, it declined to direct the surrender of the deserters.
AWARD OF THE TRIBUNAL
Award of the arbitration tribunal in the Casblanca case. — The Hague, May 22, /pop.1
Whereas, by a protocol of November 10, 1908,2 and an agreement to arbitrate of the 24th of the same month,3 the Government of the French Republic and the Imperial German Government agreed to refer to a tribunal of arbitration composed of five members the set- tlement of the questions of fact and law arising from the events which occurred at Casablanca on September 25, 1908, between agents of the two countries ; and
Whereas, in accordance with said agreement to arbitrate, the two Governments have respectively appointed as arbitrators the follow- ing persons, namely :
The Government of the French Republic, the Right Honorable Sir Edward Fry, Doctor of Laws, former judge of the Court of Appeals, member of the Privy Council of the King, member of the Permanent Court of Arbitration, and Mr. Louis Renault, member of the Institute of France, Minister Plenipotentiary, professor in the Faculty of Law of Paris, Solicitor of the Ministry of Foreign Affairs, member of the Permanent Court of Arbitration; and
The Imperial German Government, Mr. Guido Fusinato, Doctor of Laws, former Minister of Public Instruction, former professor of international law at the University of Turin, deputy to the Italian
1 American Journal of International Law, vol. 3, p. 755. For the original French text, see Appendix, p 479. *Post, p. 119. *Post, p. 117.
112 THE HAGUE COURT REPORTS
Parliament, Counselor of State, member of the Permanent Court of Arbitration, and Mr. Kriege, Doctor of Laws, present Privy Coun- selor of Legation, reporting Counselor and Solicitor of the Depart- ment of Foreign Affairs, member of the Permanent Court of Arbi- tration ; and
Whereas, the arbitrators thus appointed being instructed to name an umpire, chose as such Mr. K. Hj. L. Hammarskjold, Doctor of Laws, former Minister of Justice, former Minister of Worship and Public Instruction, former Envoy Extraordinary and Minister Plenipotentiary to Copenhagen, former president of the Court of Appeals of Jonkoping, former professor in the Faculty of Law of Upsal, Governor of the Province of Upsal, member of the Perma- nent Court of Arbitration; and
Whereas, in accordance with the provisions of the agreement to arbitrate of November 24, 1908, the cases and counter-cases were duly exchanged between the parties and communicated to the arbi- trators ; and
Whereas, the tribunal, constituted as above stated, convened at The Hague on May 1, 1909; and
Whereas, the two Governments respectively designated as their agents the following persons, namely :
The Government of the French Republic, Mr. Andre Weiss, pro- fessor in the Faculty of Law in Paris, assistant solicitor of the Min- istry of Foreign Affairs; and
The Imperial German Government, Mr. Albrecht Lentze, Doctor of Laws, Privy Counselor of Legation, reporting Counselor of the Department of Foreign Affairs ; and
Whereas, the agents of the parties have presented to the tribunal the following conclusions, namely.:
The agent of the Government of the French Republic :
May it please the tribunal —
To say and decide that it was wrong for the consul and the offi- cers of the Imperial German consulate at Casablanca to attempt to embark on a German ship deserters from the French Foreign Legion who were not German subjects ;
To say and decide that it was wrong for said consul and consular officers, under the same circumstances, to grant, on the territory occupied by the French landing corps at Casablanca, their protec-
THE CASABLANCA CASE 113
tion and material assistance to three other members of the Legion \vhom they thought or might have thought to be Germans, thus dis- regarding the exclusive right of jurisdiction belonging to the occupy- ing nation in foreign territory, even in a country granting extra- territorial jurisdiction, with respect to the soldiers of the army of occupation and to acts likely to endanger its safety, whatever they be or wherever they may originate ;
To say and decide that, in the persons of Mr. Just, chancellor of the Imperial consulate, Casablanca, and of the Moroccan soldier Abd-el-Kerim ben Mansour, no breach of the rules regarding con- sular inviolability was committed by the French officers, soldiers, and sailors, who arrested the deserters, and that in repelling the attacks and acts of violence directed against them the said officers, soldiers, and sailors, merely availed themselves of the right of self- defense.
The agent of the Imperial German Government:
May it please the tribunal —
1. As regards the points of fact, to declare that three individuals who had previously served in the French Foreign Legion, namely, Walter Bens, Heinrich Heinnemann, and Julius Meyer, all three Germans, were, on September 25, 1908, at the port of Casablanca, while accompanied by agents of Germany, violently wrested from the latter and arrested by agents of France, and that on this occa- sion agents of Germany were attacked, maltreated, outraged, and threatened by the agents of France ;
2. As regards the points of law, to declare that the three individ- uals mentioned under No. 1 above were, on September 25, 1908, subject exclusively to the jurisdiction and protection of the Imperial German consulate at Casablanca, and that agents of France had no authority at that time to interfere with agents of Germany in grant- ing German protection to these three individuals and to claim for themselves a right of jurisdiction over said individuals ;
3. As regards the status of the individuals arrested on September 25, 1908, and concerning whom there is a dispute, to decide that the Government of the French Republic shall release the three Ger- mans mentioned under No. 1 above as soon as possible and place them at the disposal of the German Government.
And whereas, the agent of the French Republic, in the hearing of
114 THE HAGUE COURT REPORTS
May 17, 1909, declared that in his conclusions the only measures referred to, either with respect to the deserters of German nation- ality, or the others, are those taken by the German agents after the desertion and with a view to embarking the deserters; and
Whereas, after the tribunal had heard the oral statements of the agents of the parties and the explanations which they furnished it at its request, the debates were declared closed at the hearing of May 17, 1909; and
Whereas, under the extraterritorial jurisdiction in force in Mo- rocco the German consular authority as a rule exercises exclusive jurisdiction over all German subjects in that country; and
Whereas, on the other hand, a corps of occupation as a rule also exercises exclusive jurisdiction over all persons belonging to it ; and
Whereas, this right of jurisdiction should be recognized as a rule even in countries granting extraterritorial jurisdiction ; and
Whereas, in case the subjects of a Power enjoying the rights of territorial jurisdiction in Morocco belong to a corps of occupation sent to that country by another Power, there necessarily arises a conflict between the two jurisdictions mentioned ; and
Whereas, the French Government did not make known the com- position of the expeditionary corps and did not declare that the fact of the military occupation modified the exclusive consular jurisdic- tion arising from the extraterritorial rights, and that, on the other hand, the German Government made no protest regarding the em- ployment in Morocco of the Foreign Legion, which is known to be composed in part of German subjects; and
Whereas, it is not within the province of this tribunal to express an opinion regarding the organization of the Foreign Legion or its employment in Morocco; and
Whereas, the conflict of jurisdictions mentioned above can not be decided by an absolute rule which would in a general manner ac- cord the preference to either of the two concurrent jurisdictions; and
Whereas, in each particular case account must be taken of the actual circumstances which tend to determine the preference; and
Whereas, the jurisdiction of the corps of occupation should have the preference in case of a conflict when the persons belonging to this corps have not left the territory which is under the immediate, lasting, and effective control of the armed force; and
THE CASABLANCA CASE 115
Whereas, at the period in question the fortified city of Casablanca was occupied and guarded by French military forces which consti- tuted the garrison of that city and were stationed either in the city itself or in the surrounding camps ; and
Whereas, under these circumstances the deserters of German nationality who belonged to the military forces of one of these camps and were within the inclosure of the city, remained subject to the exclusive military jurisdiction; and
Whereas, on the other hand, in a country granting extraterritorial jurisdiction the question of the respective competency of the consular and the military jurisdiction is very complicated and has never been settled in an express, distinct, and universally recognized manner, so that the German consular authority could not incur any blame for having granted his protection to the afore-mentioned deserters who had solicited it ; and
Whereas, the German consul at Casablanca did not grant the protection of the consulate to the deserters of non-German nation- ality and the dragoman of the consulate also did not exceed the limits of his authority in this regard ; and
Whereas, the fact that the consul, without reading it, signed the safe-conduct for six persons instead of three and omitted to state that they were of German nationality, as he had prescribed himself, can not be imputed against him except as an unintentional error; and
Whereas, the Moroccan soldier at the consulate, in aiding the de- serters to embark, acted only in accordance with orders from his superiors and, by reason of his inferior position, could not have in- curred any personal responsibility; and
Whereas, the secretary of the consulate intentionally sought to embark the deserters of non-German nationality as enjoying the protection of the consulate; and
Whereas, for this purpose he deliberately induced the consul to sign the above-mentioned safe-conduct and with the same intention took measures both to conduct the deserters to the port and to have them embarked; and
Whereas, in acting thus he exceeded the limits of his authority and committed a grave and manifest violation of his duties ; and
Whereas, the deserters of German nationality were found at the
116 THE HAGUE COURT REPORTS
port under the actual protection of the German consular authority and this protection was not manifestly illegal ; and
Whereas, this actual situation should have been respected by the French military authority as far as possible; and
Whereas, the deserters of German nationality were arrested by said authority despite the protests made in the name of the con- sulate; and
Whereas, the military authority might and therefore ought to have confined itself to preventing the embarkation and escape of the deserters, and, before proceeding to their arrest and imprison- ment, to offering to leave them in sequestration at the German con- sulate until the question of the competent jurisdiction had been de- cided ; and
Whereas, this mode of procedure would also have tended to main- tain the prestige of the consular authority, in conformity with the common interests of all Europeans living in Morocco ; and
Whereas, even if we admit the legality of the arrest the circum- stances did not warrant, on the part of the French soldiers, either the threats made with a revolver or the prolongation of the shots fired at the Moroccan soldier of the consulate even after his resist- ance had been overcome; and
Whereas, as regards the other outrages or acts of violence alleged on both sides, the order and the exact nature of the events can not be determined; and
Whereas, in accordance with what was said above, the deserters of German nationality should have been returned to the consulate in order to restore the actual situation which was disturbed by their arrest; and
Whereas, such restitution would also have been desirable with a view to maintaining the consular prestige ; however, inasmuch as, in the present state of things, this tribunal being called upon to deter- mine the final status of the deserters, there is no occasion for order- ing their provisional and temporary surrender which should have taken place;
Therefore :
The tribunal of arbitration declares and decides as follows :
It was wrong and a grave and manifest error for the secretary of the Imperial German consulate at Casablanca to attempt to have em-
THE CASABLANCA CASE 117
barked, on a German steamship, deserters from the French Foreign Legion who were not of German nationality.
The German consul and the other officers of the consulate are not responsible in this regard; however, in signing the safe-conduct which was presented to him, the consul committed an unintentional error.
The German consulate did not, under the circumstances of the case, have a right to grant its protection to the deserters of German nationality; however, the error of law committed on this point by the officers of the consulate can not be imputed against them either as an intentional or unintentional error.
It was wrong for the French military authorities not to respect, as far as possible, the actual protection being granted to these de- serters in the name of the German consulate.
Even leaving out of consideration the duty to respect consular protection, the circumstances did not warrant, on the part of the French soldiers, either the threat made with a revolver or the pro- longation of the shots fired at the Moroccan soldier of the consulate.
There is no occasion for passing on the other charges contained in the conclusions of the two parties.
Done at The Hague in the building of the Permanent Court of Arbitration, May 22, 1909.
Hj. L. HAMMARSKJOLD, President
MICHIELS VAN VERDUYNEN, Secretary General
AGREEMENT FOR ARBITRATION
Compromis of arbitration relative to the questions raised by the events which occurred at Casablanca f September 25, 1908. — Signed at Berlin, November 24,
The Imperial German Government and the Government of the French Republic, having agreed, November 10, 1908,2 to submit to arbitration all the questions raised by the events which occurred at Casablanca September 25, last, the undersigned, duly authorized for that purpose, have agreed upon the following compromis.
ARTICLE 1 An arbitral tribunal, composed as hereinafter stipulated, is charged
translation. For the original French text, see Appendix, p. 484.
118 THE HAGUE COURT REPORTS
with the settlement of questions of fact and of law which brought about the events which occurred at Casablanca September 25, last, be- tween the agents of the two countries.
ARTICLE 2
The arbitral tribunal shall be composed of five arbitrators, to be chosen from among the members of the Permanent Court of Arbitra- tion at The Hague.
Each Government, as soon as possible and within a period not to exceed fifteen days from the date of the present compromis, shall choose two arbitrators, of which only one may be its national. The four arbitrators thus designated shall choose an umpire within a fort- night from the day on which they are notified of their own designation.
ARTICLE 3
On February 1, 1909, each party shall transmit to the Bureau of the Permanent Court eighteen copies of its memorial, with the certi- fied copies of all papers and documents which it intends to present in the case. The Bureau shall guarantee their transmission without delay to the arbitrators and parties, to wit: two copies for each arbi- trator, three copies for each party. Two copies shall remain in the archives of the Bureau.
On April 1, 1909, the parties shall in like manner deposit their counter-memorials, with the papers appertaining thereto, and their final conclusions.
ARTICLE 4
Each party shall deposit with the International Bureau, not later than the 15th of April, the advance sum of 3,000 Netherland florins for the expenses of the litigation.
ARTICLE 5
The tribunal shall meet at The Hague on May 1, 1909, and shall proceed immediately to the investigation of the dispute.
It shall have authority to move itself temporarily or to delegate one or more of its members to move to whatever place seems necessary in order to proceed with the securing of information under the condi- tions of Article 20 of the Convention for the pacific settlement of in- ternational disputes, of October 18, 1907.
THE CASABLANCA CASE 119
ARTICLE 6
The parties may make use of either the German or the French language.
The members of the tribunal may, according to choice, use either the German or the French language. The decisions of the tribunal shall be rendered in both languages.
ARTICLE 7
Each party shall be represented by a special agent whose duty it shall be to serve as intermediary between it and the tribunal. These agents shall give the expositions demanded of them by the tribunal and may present any pleas which they may deem useful in the defense of their cause.
ARTICLE 8
On all points not set forth in the present compromis, the stipula- tions of the above-mentioned Convention of October 18, 1907, of which ratifications have not yet been exchanged but which has been signed alike by Germany and France, shall be applicable to the present arbitration.
ARTICLE 9
After the arbitral tribunal shall have solved the questions of fact and of law which have been submitted to it, it shall decide, in con- sequence, the case of the individuals arrested September 25, last, on which subject the present dispute rests.
Done, in duplicate, at Berlin, November 24, 1908.
[SEAL] KIDERLEN [SEAL] JULES CAMBON
ADDITIONAL DOCUMENTS
Protocol between France and Germany containing a formula of re- grets for events which occurred at Casablanca on the 25th Sep- tember, ipo8. — Signed at Berlin , November w, iQoS*
The two Governments, regretting the events which occurred at Casablanca on September 25, last, and which led the sub-agents into violence and grievous assault, are resolved to submit all the questions raised on this subject to arbitration.
By mutual consent, each of the two Governments agrees to express its regrets for the acts of these agents, following the decisions which
translation. For the original French text, see Appendix, p. 485.
120 THE HAGUE COURT REPORTS
the arbitrators shall render based upon the facts and the question of law.
Berlin, November 10, 1908.
JULES CAMBON KIDERLEN
Proccs-verbal by which the Governments of France and Germany mutually express their regrets for the acts occurring at Casablanca, which were charged against their respective agents by the Permanent Court of Arbitration on May 22, /pop. — Signed at Berlin, May 2pf /pop.1
Whereas the Government of the Republic and the Imperial Gov- ernment agreed, on November 10, last,2 to lay before a tribunal of arbi- tration assembled for the purpose, all the questions arising out of the occurrences which took place at Casablanca on September 25, pre- ceding, and whereas both Governments undertook to express mutually their regret at the action of their officials in accordance with the de- cision on the question of fact and of law which should be reached by the arbitrators;
And, whereas the tribunal of arbitration at The Hague, on May 22, 1909, recognized and announced the following:
[Here follow the findings of the Hague tribunal.]
The Government of the French Republic and the Imperial German Government declare therefore, each in so far as it is concerned, that they express their regret for the conduct for which their officials are blamed in the award of the tribunal of arbitration.
Done at Berlin in duplicate.
May 29, 1909.
1 American Journal of International Law, vol. 3, p. 946. For the original French text, see Appendix, p. 485. *Antc, p. 119.
THE GRISBADARNA CASE
between
NORWAY and SWEDEN Decided October 23, 1909
Syllabus
By a compromis signed on March 14, 1908,1 Norway and Sweden agreed to arbitrate the question of the maritime boundary between the two countries in so far as it had not been regulated by the Royal Reso- lution of March 15, 1904. 2 The arbitral tribunal was called upon to decide whether the boundary was fixed either in whole or in part by the boundary treaty of 1661, and, if not, to fix the boundary or parts thereof in accordance with the principles of international law. The tribunal consisted of a national from each of the two Governments and an umpire chosen from a neutral Power. As finally agreed upon, it was composed as follows: J. A. Loeff of Holland, F. V. N. Beichmann of Norway, and K. Hj. L. Hammarskjold of Sweden. Only the last- named was a member of the Permanent Court of Arbitration at The Hague. The tribunal held sessions from August 28 to October 18, 19C£, in the course of which it visited the disputed zone. The decision was rendered on October 23, 1909.
The tribunal found that the boundary line had not been fixed by the treaty of 1661 beyond a certain point, and that a portion of the line within that point was uncertain. The tribunal therefore fixed the boundary according to the principles in force and applied by Norway and Sweden when the original boundary treaty was made. The appli- cation of these principles resulted in a line which gave the Grisbadarna fishing banks to Sweden and the Skjottegrunde to Norway. Such a division was also supported by the state of things which the tribunal found had actually existed for a long time, especially the use made of the banks by the fishermen of the two countries and the acts of posses- sion and ownership exercised by the two Governments.
*Post, p. 133. *Post, p 136.
122 THE HAGUE COURT REPORTS
AWARD OF THE TRIBUNAL
Arbitral award in the question of the delimitation of a certain part of the maritime boundary between Norway and Sweden. — The Hague, October 23, /pop.1
Whereas, by convention dated March 14, 1908,2 Norway and Sweden agreed to submit to the final decision of a tribunal of arbi- tration, comprised of a president who shall neither be a subject of either of the contracting parties nor domiciled in either of the two countries, and of two other members of whom one shall be a Nor- wegian and the other a Swede, the question of the maritime bound- ary between Norway and Sweden as far as this boundary has not been determined by the Royal Resolution of March 1 5, 1904 ;8
Whereas, in pursuance to said convention, the two Governments have appointed respectively as president and arbitrators :
Mr. J. A. Loeff, Doctor of Law and Political Sciences, former Minister of Justice, member of the Second Chamber of the States- General of the Netherlands;
Mr. F. V. N. Beichmann, President of the Court of Appeals of Trondhjem, and
Mr. K. Hj. L. Hammarskjold, Doctor of Law, former Minister of Justice, former Minister of Public Worship and Public Construc- tion, former Envoy Extraordinary and Minister Plenipotentiary to Copenhagen, former President of the Court of Appeals of Jon- koping, former professor in the Faculty of Law of Upsal, Governor of the Province of Upsal, member of the Permanent Court of Ar- bitration ;
Whereas, in accordance with the provisions of the convention, the memorials, counter-memorials, and replies have been duly ex- changed between the parties and communicated to the arbitrators within the periods fixed by the president of the tribunal;
Whereas, the two Governments have respectively appointed as agents, to wit :
The Government of Norway, Mr. Kristen Johanssen, attorney at the Supreme Court of Norway ; and the Government of Sweden, Mr. C. O. Montan, former member of the Court of Appeals of Svea, judge in the Mixed Court of Alexandria ;
^American Journal of International Law, vol. 4, p. 226 For the original French text, see Appendix, p. 487. zPost, p. 133. *Post, p. 136.
THE GRISBADARNA CASE 123
Whereas, it has been agreed by Article 2 of the convention :
1. That the tribunal of arbitration shall determine the boundary line in the waters from point 18 on the chart1 annexed to the pro- posal of the Norwegian and Swedish commissioners of August 18, 1897, into the sea up to the limit of the territorial waters ;
2. That the lines limiting the zone which is the subject of litiga- tion in consequence of the conclusions of the parties and within which the boundary-line shall consequently be established, must not be traced in such a way as to comprise either islands, islets, or reefs which are not constantly under water ;
Whereas, it has likewise been agreed by Article 3 of the said con- vention :
1. That the tribunal of arbitration shall determine whether the boundary line is to be considered, either wholly or in part, as being fixed by the boundary treaty of 1661 together with the chart thereto annexed, and in what manner the line thus established should be traced.
2. That, as far as the boundary-line shall not be considered as established by said treaty and said chart, the tribunal shall deter- mine this boundary-line, taking into account the circumstances of fact and the principles of international law;
Whereas, the agents of the parties have presented the following conclusions to the tribunal :
The agent of the Norwegian Government :
That the boundary between Norway and Sweden within the zone which constitutes the object of the arbitral decision, shall be deter- mined in accordance with the line indicated on the chart annexed, under No. 35, to the memorial presented in behalf of the Norwegian Government.
And the agent of the Swedish Government :
I. As regards the preliminary questions:
May it please the tribunal of arbitration to declare that the bound- ary-line in dispute, as regards the space between point 18 as already fixed on the chart of the commissioners of 1897. and point A on the chart of the boundary treaty of 1661, is but incompletely established by the said treaty and the chart annexed thereto, for the reason that the exact situation of this point is not shown clearly therein, and, as regards the rest of the space, extending westward from the same
*Post, opposite p. 140.
124 THE HAGUE COURT REPORTS
point A to the territorial boundary, that the boundary-line was not established at all by these documents. II. As regards these main questions :
1. May it please the tribunal to be guided by the treaty and chart of 1661, to take into account the circumstances of fact and the prin- ciples of the law of nations, and to determine the maritime bound- ary-line in dispute between Sweden and Norway from point 18 as already fixed, in such a manner that in the first place the boundary- line shall be traced in a straight line to a point which constitutes the middle point of a straight line, connecting the northernmost reef of the Roskaren, belonging to the Koster Islands, that is to say, the icef indicated on table 5 of the report of 1906 as being surrounded with depths 9, 10 and 10 [«c.], and the southernmost reef of the Svatskjar, belonging to the Tisler Islands, and which is furnished with a beacon, which point is indicated on the same table 5 as the point 19.
2. May it please the tribunal further to take account of the cir- cumstances of fact and the principles of the law of nations and establish the rest of the disputed boundary in such a manner that —
(a) Starting from the point fixed according to the conclusions of paragraph 1 and designated as point 19, the boundary-line shall be traced in a straight line to a point situated midway on a straight line connecting the northernmost of the reefs indicated under the name of Stora Drammen, on the Swedish side and the Hejeknub rock, situated to the southeast of Heja Island, on the Norwegian side, which point is indicated on the said table 5 as point 20 ; and
(b) Starting from the point last-mentioned, the boundary shall be traced in a straight line due west as far into the sea as the mari- time territories of the two nations are supposed to extend ;
Whereas, the line mentioned in the conclusions of the Norwegian agent is traced as follows :
From point 18 as indicated on the chart of the commissioners of 1897, in a straight line to point 19 situated midway on a line drawn between the southernmost reef of the Svartskjar (the reef which is furnished with a beacon) and the northernmost reef of the Ros- karen ;
From this point 19 in a straight line to point 20, situated midway on a line drawn between the southernmost reef of the Heiefluer
THE GRISBADARNA CASE 125
(sondre Heieflu) and the northernmost of the reefs comprised under the name of Stora Drammen;
From this point 20 to point 20a, following a perpendicular drawn from the middle of the last-mentioned line.
From this point 20a to point 20&, following a perpendicular drawn from the middle of the line connecting the said southernmost reef of the Heieflu with the southernmost of the reefs comprised under the name of Stora Drammen.
From this point 20& to point 20c, following a perpendicular drawn from the middle of a line connecting the Sondre Heiefluer with the small reef situated to the north of Klofningen islet near Morholmen.
From this point 20c to point 2Qd, following a perpendicular drawn from the middle of a line connecting the Midtre Heieflu with the said reef to the north of Klofningen islet.
From this point 2Qd, following a perpendicular drawn from the middle of the line connecting the Midtre Heieflu with a small reef situated west of the said JClofningen to point 21, where the circles cross which are drawn around said reefs with a radius of 4 nautical miles (60 to a degree).
Whereas, after the tribunal had visited the disputed zone, ex- amined the documents and maps which had been presented to it, and heard the pleas and replies as well as the explanations furnished it at its request, the discussion was declared terminated at the ses- sion of October 18, 1909;
Whereas, as regards the interpretation of certain expressions used in the convention and regarding which the two parties ex- pressed different opinions during the course of the discussion,
In the first place, the tribunal is of opinion that the clause in accordance with which it is to determine the boundary-line in the sea as far as the limit of the territorial waters has no other purpose than to exclude the possibility of an incomplete determination, which might give rise to a new boundary dispute in future; and
It was obviously not the intention of the parties to fix in advance the terminal point of the boundary, so that the tribunal would have only to determine the direction between two given points ;
In the second place, the clause in accordance with which the lines bounding the zone which may be the subject of dispute in conse- quence of the conclusions of the parties must not be traced in such
126 THE HAGUE COURT REPORTS
a manner as to comprise either islands, islets, or reefs which are not constantly under water can not be interpreted so as to imply that the islands, islets, and reefs aforementioned ought necessarily tc be taken as points of departure in the determination of the boundary;
Whereas, therefore, in the two respects aforementioned, the tribunal preserves full freedom to pass on the boundary within the limits of the respective contentions;
Whereas, under the terms of the convention, the task of the tribunal consists in determining the boundary line in the water from the point indicated as 18 on the chart annexed to the project of the Norwegian and Swedish commissioners of August 18, 1897, in the sea as far as the limit of the territorial waters;
Whereas, as regards the question, "whether the boundary-line should be considered, either wholly or in part, as being fixed by the boundary treaty of 1661 and the map thereto annexed," the answer to this question should be negative, at least as regards the boundary-line beyond point A on the aforementioned map ;
Whereas, the exact situation of point A on this chart can not be determined with absolute precision, but at all events it is a point situated between points 19 and 20, as these points will be deter- mined hereinafter;
Whereas, the parties in litigation agree as regards the boundary- line from point 18 on the chart of August 18, 1897, to point 19 as indicated in the Swedish conclusions;
Whereas, as regards the boundary-line from the said point 19 to a point indicated by 20 on the charts annexed to the memorials, the parties likewise agree, except that they differ with regard to whether, in determining point 20, the Heiefluer or the Heieknub should be taken as a starting point from the Norwegian side ;
Whereas, in this connection, the parties have adopted, at least in practice, the rule of making the division along the median line drawn between the islands, islets, and reefs situated on both sides and not constantly submerged, as having been in their opinion the rule which was applied on this side of point A by the treaty of 1661;
The adoption of a rule on such grounds should, without regard to the question whether the rule invoked was really applied by said
THE GRISBADARNA CASE 127
treaty, have as a logical consequence, in applying it at the present time, that one should take into account at the same time the circum- stances of fact which existed at the time of the treaty ;
Whereas, the Heiefluer are reefs which, it may be asserted with sufficient certainty, did not immerge from the water at the time of the boundary treaty of 1661 and consequently they could not have served as a starting point in defining a boundary ;
Whereas, therefore, from the above-mentioned standpoint the Ileieknub should be preferred to the Heiefluer;
Whereas, point 20 being fixed, there remains to be determined the boundary from this point 20 to the limit of the territorial waters;
Whereas, point 20 is situated, without any doubt, beyond point A as indicated on the chart annexed to the boundary treaty of 1661 ;
Whereas, Norway has held the contention, which for that matter has not been rejected by Sweden, that from the sole fact of the Peace of Roskilde in 1658 the maritime territory in question was divided automatically between her and Sweden ;
Whereas, the tribunal fully indorses this opinion ;
Whereas, this opinion is in conformity with the fundamental principles of the law of nations, both ancient and modern, in accord- ance with which the maritime territory is an essential appurtenance of land territory, whence it follows that at the time when, in 1658, the land territory called the Bohuslan was ceded to Sweden, the radius of maritime territory constituting an inseparable appurte- nance of this land territory must have automatically formed a part of this cession;
Whereas, it follows from this line of argument that in order to ascertain which may have been the automatic dividing line of 1658 we must have recourse to the principles of law in force at that time;
Whereas, Norway claims that, inside (on this side) of the Kos- ter-Tisler line, the rule of the boundary documents of 1661 having been that the boundary ought to follow the median line between the islands, islets, and reefs on both sides, the same principle should be applied with regard to the boundary beyond this line ;
Whereas, it is not demonstrated that the boundary-line fixed by the treaty and traced on the boundary chart was based on this rule.
128 THE HAGUE COURT REPORTS
and there are some details and peculiarities in the line traced which even give rise to serious doubts in this regard, and even if one ad- mitted the existence of this rule in connection with the boundary- line fixed by the treaty, it would not necessarily follow that the same rule ought to have been applied in determining the boundary in the exterior territory;
Whereas, in this connection,
The boundary treaty of 1661 and the chart thereto annexed make the boundary-line begin between the Koster and Tisler Islands;
Whereas, in determining the boundary-line they went in a direc- tion from the sea toward the coast and not from the coast toward the sea;
Whereas, it is out of the question to say that there might have been a continuation of this boundary-line in a seaward direction ;
Whereas, consequently, the connecting link is lacking in order to enable us to presume, without decisive evidence, that the same rule was applied simultaneously to the territories situated this side and to those situated that side of the Koster-Tisler line;
Whereas, moreover, neither the boundary treaty nor the chart appertaining thereto mention any islands, islets, or reefs situated beyond the Koster-Tisler line, and therefore, in order to keep with- in the probable intent of these documents we must disregard such islands, islets, and reefs;
Whereas, again, the maritime territory belonging to a zone of a certain width presents numerous peculiarities which distinguish it from the land territory and from the maritime spaces more or less completely surrounded by these territories;
Whereas, furthermore, in the same connection, the rules regard- ing maritime territory can not serve as a guide in determining the boundary between two contiguous countries, especially as, in the present case, we have to determine a boundary which is said to have been automatically traced in 1658, whereas the rules invoked date from subsequent centuries ;
And it is the same way with the rules of Norwegian municipal law concerning the definition of boundaries between private proper- ties or between administrative districts;
Whereas, for all these reasons, one can not adopt the method by which Norway has proposed to define the boundary from point 20 to the territorial limit ;
THE GRISBADARNA CASE 129
Whereas, the rule of drawing a median line midway between the inhabited lands does not find sufficient support in the law of nations in force in the seventeenth century;
Whereas, it is the same way with the rule of the thalweg or the most important channel, inasmuch as the documents invoked for the purpose do not demonstrate that this rule was followed in the present case. And,
Whereas, we shall be acting much more in accord with the ideas of the seventeenth century and with the notions of law prevailing at that time if we admit that the automatic division of the territory in question must have taken place according to the general direc- tion of the land territory of which the maritime territory constituted an appurtenance, and if we consequently apply this same rule at the present time in order to arrive at a just and lawful determination of the boundary;
Whereas, consequently, the automatic dividing line of 1658 should be determined (or, what is exactly the same thing expressed in other words), the delimitation should be made to-day by tracing a line perpendicularly to the general direction of the coast, while tak- ing into account the necessity of indicating the boundary in a clear and unmistakable manner, thus facilitating its observation by the interested parties as far as possible ;
Whereas, in order to ascertain what is this direction we must take equally into account the direction of the coast situated on both sides of the boundary;
Whereas, the general direction of the coast, according to the ex- l>ert and conscientious survey of the tribunal, swerves about 20 degrees westward from due north, and therefore the perpendicular line should run toward the west to about 20 degrees to the south ;
Whereas, the parties agree in admitting the great uiisuitability of tracing the boundary-line across important bars ; and
A boundary-line drawn from point 20 in a westerly direction to 19 degrees to the south would completely obviate this inconvenience, since it would pass just to the north of the Grisbadarna and to the south of Skjottegrunde and would also not cut through any other important bank ; and
Consequently, the boundary-line ought to be traced from point 20 westward to 19 degrees south, so that it would pass midway between
130 THE HAGUE COURT REPORTS
the Grisbadarna banks on the one side and Skjottegrunde on the other ;
Whereas, although the parties have not indicated any marks of alignment for a boundary-line thus traced there is reason to believe that it will not be impossible to find such marks;
Whereas, on the other hand, we could, if necessary, avail our- selves of other known methods of marking the boundary;
Whereas, a demarkation which would assign the Grisbadarna to Sweden is supported by all of several circumstances of fact which were pointed out during the discussion and of which the following are the principal ones:
(a) The circumstance that lobster fishing in the shoals of Gris- badarna has been carried on for a much longer time, to a much larger extent, and by a much larger number of fishermen by the subjects of Sweden than by the subjects of Norway.
(&) The circumstance that Sweden has performed various acts in the Grisbadarna region, especially of late, owing to her conviction that these regions were Swedish, as, for instance, the placing of beacons, the measurement of the sea, and the installation of a light- boat, being acts which involved considerable expense and in doing which she not only thought that she was exercising her right but even more that she was performing her duty; whereas Norway, according to her own admission, showed much less solicitude in this region in these various regards ;
Whereas, as regards the circumstance of fact mentioned in para- graph a above, it is a settled principle of the law of nations that a state of things which actually exists and has existed for a long time should be changed as little as possible; and
This rule is specially applicable in a case of private interests which, if once neglected, can not be effectively safeguarded by any manner of sacrifice on the part of the Government of which the interested parties are subjects ; and
Lobster fishing is much the most important fishing on the Grisba- darna banks, this fishing being the very thing that gives the banks their value as fisheries; and
Without doubt the Swedes were the first to fish lobsters by means of the tackle and craft necessary to engage in fishing as far out at sea as the banks in question are situated ; and
THE GRISBADARNA CASE 131
Fishing is, generally speaking, of more importance to the inhab- itants of Koster than to those of Hvaler, the latter having, at least until comparatively recent times, engaged rather in navigation than fishing; and
From these various circumstances it appears so probable as to be almost certain that the Swedes utilized the banks in question much earlier and much more effectively than the Norwegians; and
The depositions and declarations of the witnesses are, generally speaking, in perfect harmony with this conclusion ; and
The arbitration convention is likewise in full accord with the same conclusion; and
According to this convention there is a certain connection between the enjoyment of the fisheries of the Grisbadarna and the keeping up of the light-boat, and, as Sweden will be obliged to keep up the light-boat as long as the present state of affairs continues, this shows that, according to the arguments of this clause, the principal enjoy- ment thereof is now due to Sweden ;
Whereas, as regards the circumstances of fact as mentioned under b :
As regards the placing of beacons and of a light-boat —
The stationing of a light-boat, which is necessary to the safety of navigation in the regions of Grisbadarna, was done by Sweden without meeting any protest and even at the initiative of Norway, and likewise a large number of beacons were established there with- out giving rise to any protests; and
This light-boat and these beacons are always maintained by Sweden at her own expense ; and
Norway has never taken any measures which are in any way equivalent except by placing a bell-buoy there at a time subsequent to the placing of the beacons and for a short period of time, it being impossible to even compare the expenses of setting out and keeping up this buoy with those connected with the beacons and the light- boat; and
It is shown by the foregoing that Sweden had no doubt as to her rights over the Grisbadarna and that she did not hesitate to incur the expenses incumbent on the owner and possessor of these banks even to the extent of a considerable sum of money.
As to the measurements of the sea —
132 THE HAGUE COURT REPORTS
Sweden took the first steps, about thirty years before the begin- ning of any dispute, toward making exact, laborious, and expensive measurements of the regions of Grisbadarna, while the measure- ments made some years later by Norway did not even attain the limits of the Swedish measurements. And
Whereas, therefore, there is no doubt whatever that the assign- ment of the Grisbadarna banks to Sweden is in perfect accord with the most important circumstances of fact ;
Whereas, a demarkation assigning the Skjottegrunde (which are the least important parts of the disputed territory) to Norway is sufficiently warranted by the serious circumstance of fact that, although one must infer from the various documents and testimony that the Swedish fishermen, as was stated above, have carried on fishing in the regions in question for a longer period, to a greater extent, and in greater numbers, it is certain on the other hand that the Norwegian fishermen have never been excluded from fishing there ;
Whereas, moreover, it is averred that the Norwegian fishermen have almost always participated in the lobster fishing on the Skjotte- grunde in a comparatively more effective manner than at the Gris- badarna :
Therefore
The tribunal decides and pronounces :
That the maritime boundary between Norway and Sweden, as far as it was not determined by the Royal Resolution of March 15, 1904, is fixed as follows :
From point 18 situated as indicated on the chart annexed to the project of the Norwegian and Swedish commissioners of August 18, 1897, a straight line is traced to point 19, constituting the middle point of a straight line drawn from the northernmost reef of the Roskaren to the southernmost reef of the Svartskjar, the one which is provided with a beacon ;
From point 19 thus fixed, a straight line is traced to point 20, which constitutes the middle point of a straight line drawn from the northernmost reef of the group of reefs called Stora Dram- men to the Hejeknub situated to the southeast of Heja Islands; from point 20 a straight line is drawn in a direction of west 19 degrees south, which line passes midway between the Grisbadarna
THE GRISBADARNA CASE 133
and the Skjottegrunde south and extends in the same direction until it reaches the high sea.
Done at The Hague, October 23, 1909, in the Palace of the Per- manent Court of Arbitration.
J. A. LOEFF, President
MICHIELS VAN VERDUYNEN, Secretary General
ROELL, Secretary
AGREEMENT FOR ARBITRATION
Convention between Norway and Sweden for the reference to arbitra- tion of the question of a certain portion of the sea-limit between the two countries in connection with the Grisbadarna rocks. — Signed at Stockholm, March 14, ipoS.1
His Majesty the King of Sweden and His Majesty the King of Nor- way, having found it desirable that the question of the sea-limit be- tween Sweden and Norway, in so far as it was not determined by the Resolution of the 15th March, 1904,2 should be referred to arbitration, have for this purpose appointed as their representatives :
His Majesty the King of Sweden: His Minister for Foreign Af- fairs, Eric Birger Trolle ;
His Majesty the King of Norway: His Envoy Extraordinary and Minister Plenipotentiary, Paul Benjamin Vogt;
Who, after exchanging full powers, have agreed to the following conditions :
ARTICLE 1
The parties pledge themselves to the extent stated below to leave the settling of the question of the sea-limit between Sweden and Norway to a tribunal of arbitration, consisting of a president who is neither a subject of nor domiciled in either of the two countries, and of two other members : one Swede and one Norwegian. The president shall be appointed by Her Majesty the Queen of the Netherlands, the other members one each by the parties concerned. The parties, however, retain the right, should they agree, to appoint by special arrangement either the president only or the collective members of the tribunal.
^British and Foreign State Papers, vol. 102, p. 731. For the original Swedish and Norwegian texts, see Appendix, p. 496. *Postf p. 136.
134 THE HAGUE COURT REPORTS
Representation to Her Majesty the Queen of the Netherlands, or the arbitrator who may be appointed by agreement, shall be made by both parties together.
ARTICLE 2
The tribunal of arbitration shall, after having examined the case of each of the parties and their respective reasons and proofs, determine the boundary-line in the waters from point 18 on the chart1 annexed to the Swede-Norwegian proposal of the 18th August, 1897, into the sea up to the limit of the territorial waters. It is agreed that the boundary- line of the zone which the parties maintain to be under discussion, and for which, consequently, the limit is to be defined, may not be so drawn as to include islands, islets, or reefs which are not perpetually covered with water.
ARTICLE 3
The tribunal of arbitration shall have power to determine how far the boundary-line shall be considered to be, either wholly or in part, determined by the boundary treaty of 1661, together with the chart appertaining to the same, and how such boundary-line is to be traced, and also, in so far as the boundary-line can not be considered as estab- lished by the treaty and chart in question, shall have power to deter- mine the same, taking into account the circumstances of fact and the principles of international law.
ARTICLE 4
Until the expiry of the third calendar year after the announcement of the decision of the tribunal of arbitration, irrespective of the bound- ary line fixed by that decision, fishing may be carried on within the waters which, according to Article 2, are the subject of dispute by the subjects of both countries to the same extent as during the five-year period 1901-1905. In considering the extent to which fishing is carried on, regard shall be had to the number of fishermen, the kind of fish, and the manner of catching.
ARTICLE 5
It is agreed that that country on whose side of the eventual boundary- line the Grisbadarna fishing grounds are situated shall have no claim against the other country for contribution towards the expense of light- ships or other arrangements on or in the neighborhood of such grounds.
*Post, opposite p. 140.
THE GRISBADARNA CASE 135
Sweden undertakes to maintain the present light-ship situated out- side the territorial limit until the expiration of the time mentioned in Article 4.
ARTICLE 6
The president of the tribunal of arbitration shall appoint the time and place for the first meeting of the tribunal and shall summon the other members to it.
Time and place for further meetings shall be decided by the tribunal of arbitration.
ARTICLE 7
The official language to be used by the tribunal shall be English, French, or German, as may be decided in consultation with the other members.
For petitions, evidence, and directions the parties may use the lan- guage of either country, the tribunal retaining the right to have trans- lations made.
ARTICLE 8
With respect to procedure and expenses, there shall apply such por- tions of the regulations contained in Articles 62 to 85 of the revised Convention adopted at the Second Hague Conference of 1907 for the pacific settlement of international disputes as may be applicable.
Petitions, rejoiners, and evidence referred to in Article 63 paragraph 2, of the above-mentioned Convention, shall be filed within a period to be determined by the president of the tribunal of arbitration, but before the 1st March, 1909. No change is hereby entailed in the rules of procedure for the second part, especially as regards the regulations in Articles 68, 72, and 74 of the said Convention.
The tribunal of arbitration has the right, when it is found necessary for the elucidation of the case, to arrange for the hearing of witnesses or experts in the presence of both parties and to order the undertaking in common of a hydrographical survey of the waters under dispute.
ARTICLE 9
This Convention shall be ratified, and the ratifications exchanged as soon as possible in Stockholm.
In respect whereof the respective plenipotentiaries have signed this Convention and affixed thereto their seals.
Done in duplicate, in Swedish and Norwegian, at Stockholm, on the 14th March, 1908.
(L. S.) ERIC TROLLE (L. S.) BENJAMIN VOGT
136 THE HAGUE COURT REPORTS
ADDITIONAL DOCUMENTS
His Royal Majesty's gracious resolution of March 26, 1904, with ac- companying Protocol of March 15, ipo./., concerning the determina- tion of the extent of a certain part of the maritime boundary be- tween Sweden and Norway.1
In reference to the accompanying protocol of the joint Norwegian and Swedish Council of State of March 15, 1904, as well as the extract from the protocol of the State Council regarding civil matters for this day, His Royal Majesty herewith authorizes the Riksdag to propose that the question of the extent of the maritime boundary between Sweden and Norway, from point 18 mentioned in the said protocol, and to the sea, as far as the territorial boundary extends, be referred to the decision of a special arbitral tribunal, in accordance with the text of the protocols.
The authorities of the Riksdag shall appoint a committee to conduct the examination of the acts ; and with all Royal grace and favor His Royal Majesty remains ever well disposed to the Riksdag.
In the absence of His Majesty my Most gracious King and Lord,
GUSTAF
HJALMAR WESTRING
PROTOCOL CONSIDERED IN THE JOINT NORWEGIAN AND SWEDISH STATE COUNCIL BEFORE HIS ROYAL HIGHNESS THE CROWN PRINCE REGENT AT THE CASTLE OF CHRISTIANIA, MARCH 15, 1904.
Present : His Excellency the Minister of State Hagerup, his Ex- cellency the Minister of State Ibsen, his Excellency the Minister of State Bostrom, his Excellency the Minister for Foreign Affairs Lager- heim, State Councilors: Kildal, Strugstad, Hauge, Schoning, Vogt, Mathiesen, and the Swedish State Councilor, Westring.
The Chief of the Department of Commerce and Industry, State Councilor Schoning submitted the following:
The Department takes the liberty of presenting considerations concerning measures anent the more definite fixation of national boundaries in the waters between Norway and Sweden.
Maritime boundaries between the two countries running from the interior of Idef jard and out to the sea were fixed in a boun- dary regulation of October 26, 1661, carried out in accord with the peace treaty of Roskilde of February 26/March 9, 1658, and of Copenhagen of March 27/June 6, 1660.
translation. For the original Swedish text, see Appendix, p. 500.
THE GRISBADARNA CASE 137
In the meantime much uncertainty has arisen regarding sev- eral points of this boundary line in view of the fact that during the long interval between 1661 and 1897 nothing was done in the matter by joint survey and investigation. In 1897 the Norwegian Department of the Interior and the Swedish Department for Civil Affairs took action whereby they might ascertain the exact course of that section of the boundary; and in the month of August of the same year two Norwegian and two Swedish commissioners met for the purpose of making a thorough search of the records and an investigation on the spot, etc., and of their presenting a proposition for the fixation and tracing upon charts of the bound- ary line between Norway and Sweden, from tihe interior of Idefjard and out into the sea.
Bureau Secretary Hroar Olsen and Commander A. Rieck were the Norwegian commissioners ; Commander E. Oldberg and Judge H. Westring were the Swedish commissioners.
As the result of their labors and investigations, the commis- sioners presented on August 18, 1897, the "proposition of the Royal Swedish and Norwegian Commission for and description of the maritime boundary between Norway and Sweden from the interior of Idefjard to the sea."
From this it appears, as witnessed by all four commissioners, that they had reached a unanimous conclusion regarding the boundary line from the interior of Tdefjard to a point between the Jyete buoy (Norwegian) and a small Island, northwest of Narro Hellso (Swedish), which point is numbered 18 on a draft chart accompanying the proposition, so that Helleholmen is trans- ferred to Sweden, and Knivsoarna to Norway.
Regarding the extent of the boundary line from the said point 18 even to the sea, no agreement was arrived at by the commis- sion. The Norwegian and the Swedish members each submitted their respective proposition in reference to that part, and accord- ing to which Grisbadarna together with some shallows and ground to the north of Koster should go respectively to Norway or to Sweden.
The commissioners' propositions1 together with two charts in reference thereto are subjoined.2
The Department is of opinion that the line proposed by the Norwegian and Swedish commission, from the interior of Idefjard to point 18, as indicated on the accompanying map, should be re- garded as tiie correct boundary line.
Inasmuch as with regard to the more detailed description of this line, reference is made to the proposition of the commission- ers, the Department permits itself to recommend that Your Majesty approve that line as the correct boundary between the two kingdoms.
Provided that Your Majesty be pleased to decide according to this recommendation, the Department assumes that subsequently
*Postt p. 138. *Post, opposite p 140.
138 THE HAGUE COURT REPORTS
the royal proclamation with regard to the boundary line agreed upon, will be issued by the State Council of each of the two king- doms.
It is furthermore to be observed that it would be of importance to demarkate as soon as possible this part of the boundary line. It seems most expedient that a commissioner of each kingdom be appointed to undertake this demarkation, and the Department recommends therefore that Your Majesty approve this proposal to the effect that the State Council of each of the two kingdoms shall designate respectively one Norwegian and one Swedish commis- sioner.
As hereinbefore stated, the Norwegian and Swedish commis- sioners have not been able to agree upon the matter regarding the rectification of the extent of the boundary from the said point IS to the sea.
The following is a more detailed presentation of the views held by the Norwegian and Swedish parties with regard to the disputed boundary line.
NORWEGIAN VIEW
From point 18, between the buoy Jyete and a small island northwest of Narra Hellso, the line should run straight to the open sea through the center of a straight line from the southern extremity of the southernmost Norwegian Tislaron, Kloveren, to the northern extremity of the northern Koster island (Swed- ish), so that the boundary line run by Batshake, and all islands situated to the north of this line, including Grisbadarna, remain Norwegian.
This line is traced in red color on the chart of the commission- ers, and said point between Kloveren and Koster island is indi- cated as point 19.
SWEDISH VIEW
From point 18, the boundary line should be drawn in a straight line to the open sea, through a point about 300 meters north of Rodkars Nordgrund and therefore about midway between Gris- badarna and Skattegrund, so that all islands to the south out- side of this line, water and land, including Grisbadarna, remain Swedish.
Upon the chart of the commissioners this line is traced in yellow color, and the said point north of Rodkars Nordgrund marked point 19.
This Department permits itself respectfully to propose that the question of the disputed boundary line to the arbitral decision of a special tribunal, after the consent thereto shall have been given by the representatives of both kingdoms, and that the following pro- cedure be observed :
In each of the two kingdoms, the respective State Council shall appoint two judges.
THE GRISRADARNA CASE 139
The judges thus designated shall mutually agree upon a fifth judge who shall at the same time act as president of the tribunal. In case of a tie, the designation of the fifth member shall be re- ferred to such foreign chief of State as Your Majesty might re- quest to that end.
The rules of procedure of the tribunal, the deliberations as well as the place where the tribunal shall sit to be adopted by the judges themselves.
The duly announced judicial decision regarding the disputed boundary line shall be binding upon both parties.
Each kingdom shall meet the expenses of its own representa- tives, and the expenses of the fifth member, etc., shall be met in equal shares by the two kingdoms.
In accordance with the foregoing, the Department takes the liberty of submitting most respectfully:
That Your Majesty may most graciously resolve:
(1) That the boundary line between Norway and Sweden as pro- posed by the joint Norwegian and Swedish commission of 1897, from the upper end of Idef jard to point 18 as shown on the two accompany- ing charts1 be approved according to the proposal of the commis- sioners ;
(2) That the demarkation of the said boundary line shall be under- taken by commissioners chosen for the purpose, one from each king- dom;
(3) That questions concerning boundary lines between Norway and Sweden, from the aforesaid point 18 to the sea, as far as the terri- torial boundary extends shall be referred to the decision of a special arbitral tribunal, in accordance with what is hereinbefore stated, pro- vided the representatives of the two kingdoms consent thereto.
The Swedish members of the State Council have concurred in what the present reporter has hereinbefore submitted as to the approval of the boundary lines proposed by the Swedish and Norwegian com- missioners, from the upper end of Idefjard to the said point 18, in- cluding the demarkation of the boundary line.
Regarding the section of the boundary line from point 18 to the sea as far as the territorial boundary, those members declare that in sev- eral statements that have been sent in regarding this matter, sugges- tions have been made regarding the boundary according to which this line would in part be moved still further north than proposed by the Swedish commissioners. Expressing in regard to this the opinion that the proposal to submit to a special arbitral tribunal the decision as tD
, opposite p. 140.
140 THE HAGUE COURT REPORTS
the question of the position of the boundary line in this part, that this implied that both parties should have the opportunity to submit to the tribunal the demands in regard thereto which they might find neces- sary, these members agree to the proposition of the reporter even as to this part of the question.
The Norwegian members had no objection to make to the foregoing statement, which corresponded to what had been already taken for granted by the Norwegian side.
In accordance with what the members of the Council of State thus advise, may it please Your Royal Majesty the Crown Prince Regent to approve the proposal set forth by the chief of the Norwegian De- partment of Commerce and Industry.
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THE NORTH ATLANTIC COAST FISHERIES CASE
between GREAT BRITAIN and THE UNITED STATES
Decided September 7, 1910
Syllabus
The treaty of peace of 1783 between Great Britain and the United States continued to inhabitants of the United States the privileges theretofore enjoyed in common with British subjects in the fisheries off Newfoundland, Labrador, and other parts of the North Atlantic Coast.
Great Britain regarded this treaty as abrogated by the war of 1812, whereas the United States considered it as only suspended by and during the war. However, on October 20, 1818, a new treaty was signed with a view of defining the rights of inhabitants of the United States to take fish in certain parts of British north Atlantic coast waters, and to enter bays and harbors for the purpose of repairs, etc. Article 1 reads as follows:
Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high con- tracting Parties, that the inhabitants of the said United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands on the shores of the Magda- len Islands, and also on the coasts, bays, harbors, and creeks from Mount Joly on the southern coast of Labrador, to and through the Straits of Belleisle and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hud- son Bay Company: And that the American fishermen shall also have liberty forever, to dry and cure fish in any of the unsettled bays, har- bors, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador ; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, with-
142 THE HAGUE COURT REPORTS
out previous agreement for such purpose with the inhabitants, pro- prietors, or possessors of the ground. And the United States hereby renounce forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above-men- tioned limits: Provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtain- ing water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.
Differences arose as to the scope and meaning of this article and of the rights and liberties referred to in the article or claimed on behalf of the inhabitants of the United States. Beginning with the seizure of American fishing vessels in 1821-2, the controversy over fishing rights continued in more or less menacing form until 1905 when, on account of the severe restrictive legislation by Newfoundland, affairs reached a critical stage. Negotiations were begun looking to a settlement, and in 1906 a modus vivendP covering the fishing season of 1906-7 was agreed upon by the two Governments for the purpose of allaying fric- tion until some definite adjustment could be reached. The modus was renewed for the fishing seasons of 1907-8,2 1908-93 and 1909-10,4 and on January 27, 1909, a compromis5 was signed submitting the con- troversy to the Permanent Court of Arbitration at The Hague. A tribunal was created composed of the following members of the panel of the court: Heinrich Lammasch, of Austria-Hungary; A. F. de Savornin Lohman, of Holland; George Gray, of the United States; Luis M. Drago, of Argentine; and Sir Charles Fitzpatrick, of Great Britain. The sessions of the tribunal began June 1, 1910, and ended August 12, 1910; the decision was rendered September 7, 1910.
There were seven questions submitted to the tribunal.
First. Great Britain contended for the right, directly or indirectly through Canada or Newfoundland, to make regulations applicable to American fishermen in treaty waters without the consent of the United States, "in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts ; (2) the method, means and im- plements to be used in the taking of fish or in the carrying on of fish- ing operations on such coasts; (3) any other matters of a similar char- acter;" provided such regulations were "reasonable, as being, for in- stance, appropriate or necessary for the protection and preservation of such fisheries; desirable on grounds of public order and morals;
*Post, p. 208. *Post, p. 212. *Post, p 214. *Post, p. 220. *Post, p. 147.
THE NORTH ATLANTIC COAST FISHERIES CASE 143
equitable and fair as between local fishermen and the inhabitants of the United States."
The United States, on the other hand, denied the right of Great Britain to make such regulations "unless their appropriateness, neces- sity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement."
The tribunal in its decision on this question affirmed the right of Great Britain "to make regulations without the consent of the United States" but held that "such regulations must be made bona fide and must not be in violation of the said treaty;" and that "regulations which are (1) appropriate or necessary for the preservation of such fisheries, or (2) desirable or necessary on grounds of public order and morals without unnecessarily interfering with the fishery itself, and in both cases equitable and fair as between local and American fisher- men, and not so framed as to give an advantage to the former over the latter class, are not inconsistent with the obligation to execute the treaty in good faith, and are therefore not in violation of the treaty."
The award thus far is in favor of Great Britain, but the tribunal held further that, if the reasonableness of the regulation is contested by the United States, Great Britain is not to be the judge of what is or what is not reasonable, but that it must be decided not by either of the parties but by an impartial authority. To this end the tribunal recommended certain rules and methods of procedure in case any reg- ulation was contested, the important feature being that any such con- tested regulation, before becoming effective, should be referred to a permanent mixed fishery commission, whose membership, procedure and authority the tribunal also defined. In proposing this recommen- dation, accepted by the parties in controversy, the tribunal relied upon Article 4 of the special agreement, which was considered both by the tribunal and by Great Britain and the United States, as in the nature of a permanent treaty of unlimited duration for the settlement of any disputes that might arise between the two countries under the conven- tion of 1818. This article is as follows :
The tribunal shall recommend for the consideration of the high con- tracting Parties rules and a method of procedure under which all ques- tions which may arise in the future regarding the exercise of the liberties above referred to may be determined in accordance with the principles laid down in the award. If the high contracting Parties shall not adopt the rules and method of procedure so recommended, or if they shall not, subsequently to the delivery of the award, agree upon such rules and method, then any differences which may arise in the future between the high contracting Parties relating to the interpreta- tion of the treaty of 1818 or to the effect and application of the award of the tribunal shall be referred informally to the Permanent Court at The Hague for decision by the summary procedure provided in Chap- ter IV of the Hague Convention of the 18th October. 1907.1
*Post, p. 151.
144 THE HAGUE COURT REPORTS
Second. This was as to the right of the inhabitants of the United States, while exercising the liberties referred to, to employ as members of the fishing crews of their vessels persons not inhabitants of the United States.
The United States contended (1) that the liberty assured to their inhabitants by the treaty plainly includes the right to use all the means customary or appropriate for fishing upon the sea, not only ships and nets and boats, but crews to handle the ships, the nets and the boats; (2) that no right to control or limit the means which these inhabitants shall use in fishing can be admitted unless it is provided in the terms of the treaty and no right to question the nationality or inhabitancy of the crews employed is contained in the terms of the treaty.
Great Britain, on the other hand, contended (1) that the treaty con- fers the liberty to inhabitants of the United States exclusively; (2) that the Governments of Great Britain, Canada or Newfoundland may, without infraction of the treaty, prohibit persons from engaging as fishermen in American vessels.
The tribunal held in favor of the United States but expressed the view that non-inhabitants employed as members of crews of American fishing vessels derive no rights from the treaty, but only from their employer.
Third. The United States contended that its inhabitants were not, without its consent, to be subjected "to the requirements of entry or report at custom-houses or the payment of light or harbor dues, or to any other similar requirement or condition or exaction."
The United States stated in its case that American fishing vessels exercising their treaty rights might properly be called upon to make known their presence and exhibit their credentials by a report at cus- toms, but on the other hand, the United States denied that such vessels could be subjected to the customs regulations imposed upon other ves- sels, or required to pay light, harbor or other dues not imposed upon local fishing vessels.
The tribunal held that the duty to report is not unreasonable, if the report may be made conveniently either in person or by telegraph ; otherwise the vessel need not report. It was also held that "the exer- cise of the fishing liberty by the inhabitants of the United States should not be subjected to the purely commercial formalities of re- port, entry and clearance at a custom-house, nor to light, harbor or other dues not imposed upon Newfoundland fishermen."
Fourth. This question was as to the right to require payment of light and harbor dues by fishermen of the United States, or to report at custom-houses, and similar requirements when resorting to certain bays and harbors for shelter, wood, water, etc.
The treaty provided that American fishermen might enter bays or harbors on the non-treaty coast "for the purpose of shelter and of re- pairing damages therein, of purchasing wood and of obtaining water, and for no other purpose whatever."
Great Britain contended that vessels, seeking these non-treaty ports
THE NORTH ATLANTIC COAST FISHERIES CASE 145
were to be treated as ordinary vessels, subject to local ordinances and regulations, whereas the United States maintained that the ports were to be treated as ports of refuge and that subjection of fishing vessels to the prerequisite of entering and reporting at custom-houses, or of paying light, harbor or other dues would unjustly impair and limit the privileges which the clause meant to concede.
The tribunal held that the treaty provision was an exercise, in large measure, of the "duties of hospitality and humanity which all civilized nations impose upon themselves," and was not dependent upon the payment of dues or other similar requirements, although the privilege should not be abused.
Fifth. By the convention of 1818 the United States renounced the right "to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's do- minions in America" not included within the limits specified by the treaty. The fifth question asked "from where must be measured the 'three marine miles of any of the coasts, bays, creeks, or harbors' re- ferred to in the said article?"
Great Britain contended that the United States had renounced the right to fish within all bays and within three miles thereof, that is, that the word "bays" in the treaty was used in both a geographical and territorial sense, thereby excluding American fishermen from all bodies of water on the non-treaty coast known as bays on the charts of the period. On the contrary the United States maintained that the word "bays" was used in the territorial sense, and therefore limited to small bays, and that it had renounced merely the right to fish within such bays as formed part of His Majesty's dominions, that is to say, terri- torial bays; that only such bays whose entrance was less than double the marine league were renounced, and that in such cases the three marine miles were to be measured from a line drawn across the bays where they were six miles or less in width.
The tribunal decided in favor of the British contention that the word "bays" must be interpreted as applying to geographical bays, and held that "in case of bays, the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay," but that "at all other places the three marine miles are to be measured follow- ing the sinuosities of the coast." That is, a body of water, geographic- ally called a bay, may cease to have "the configuration and character- istic of a bay" and at this point the line is to be drawn.
The tribunal, however, in view of the difficulty in the practical appli- cation of the rule laid down, recommended a procedure to determine the limits of particular bays, which were specified, and provided also that as to bays not specified "the limits of exclusion should be three miles seaward from a straight line across the bay at the part nearest the entrance at the first point where the width does not exceed ten miles."
The decision was not unanimous, Dr. Drago submitting a dissenting
146 THE HAGUE COURT REPORTS
opinion, in which he maintained that there was no certain rule laid down for the guidance of the parties, and that the recommendation of a special series of lines, however practical they might be supposed to be, was beyond the scope of the award and could not be adopted without a new treaty being entered into by the parties.
Sixth. The United States contended that the inhabitants of the United States have the liberty, under Article 1 of the treaty, of taking fish in the bays, harbors, and creeks on what was known as the treaty coast, that is, on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands and on the Magdalen Islands. Great Britain contended that they had no such liberty, and endeavored to show that evidence could be found in the correspondence submitted to the tribunal indicating an intention to exclude Americans from Newfoundland bays on the treaty coast, and that no value would have been attached at that time by the United States Government to the liberty of fishing in such bays because there was no cod fishery there as there was in the bays of Labrador.
The tribunal decided in favor of the United States.
Seventh. This was whether vessels belonging to inhabitants of the United States resorting to the treaty coasts for the purposes of exer- cising the liberties referred to, were entitled to have the commercial privileges which were accorded by agreement or otherwise to trading vessels of the United States generally. The tribunal held that there was nothing in the treaty provisions to disentitle them, provided the treaty liberty of fishing and the commercial privileges were not exer- cised concurrently.
The tribunal decided in favor of the United States.
AWARD OF THE TRIBUNAL
Award of the tribunal of arbitration in the question relating to the north Atlantic coast fisheries. — The Hague, September 7, ipio.1
PREAMBLE
Whereas a special agreement between the United States of America and Great Britain, signed at Washington the 27th January, 1909,2 and confirmed by interchange of notes dated the 4th March, 1909,8 was concluded in conformity with the provisions of the gen- eral arbitration treaty between the United States of America and
Official report, p. 104. *Post, p. 147. *Post, p. 215.
THE NORTH ATLANTIC COAST FISHERIES CASE 147
Great Britain, signed the 4th April, 1908, and ratified the 4th June, 1908;
And whereas the said special agreement for the submission of questions relating to fisheries on the North Atlantic coast under the general treaty of arbitration concluded between the United States and Great Britain on the 4th day of April, 1908, is as follows r1
ARTICLE 1
Whereas by Article 1 of the convention signed at London on the 20th day of October, 1818, between Great Britain and the United States, it was agreed as follows :
Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry and cure fish on certain coasts, bays, harbors and creeks of His Britannic Majesty's dominions in America, it is agreed between the high con- tracting Parties, that the inhabitants of the said United States shall have forever, in common with the subjects of His Britannic Maj- esty, the liberty to take fish of every kind on that part of the south- ern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfound- land, from the said Cape Ray to the Quirpon Islands, on the shores of Magdalen Islands, and also on the coasts, bays, harbors, and creeks from Mount Joly on the southern coast of Labrador, to and through the Straits of Belleisle and thence northwardly in- definitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson Bay Company; and that the American fishermen shall also have liberty forever, to dry and cure fish in any of the unsettled bays, harbors and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. — And the United States hereby renounce forever, any liberty heretofore enjoyed or claimed by the inhabi- tants thereof, to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above- mentioned limits; provided, however, that the American fishermen
*As the full text of the agreement for arbitration is here given, it is not printed again under a special heading.
148 THE HAGUE COURT REPORTS
shall be admitted to enter such bays and harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.
And, whereas, differences have arisen as to the scope and mean- ing of the said article, and of the liberties therein referred to, and otherwise in respect of the rights and liberties which the inhabitants of the United States have or claim to have in the waters or on the shores therein referred to:
It is agreed that the following questions shall be submitted for decision to a tribunal of arbitration constituted as hereinafter pro- vided :
Question I. To what extent are the following contentions or either of them justified?
It is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said article, which the inhabitants of the United States have forever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordi- nances, or rules, as, for example, to regulations in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; (3) any other matters of a similar character relating to fishing ; such regulations being reasonable, as being, for instance —
(a) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and of the liberty which by the said Article 1 the inhabitants of the United States have therein in common with British subjects ;
(b) Desirable on grounds of public order and morals;
(c) Equitable and fair as between local fishermen and the in- habitants of the United States exercising the said treaty liberty and not so framed as to give unfairly an advantage to the former over the latter class.
It is contended on the part of the United States that the ex-
THE NORTH ATLANTIC COAST FISHERIES CASE 149
ercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar character —
(a) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and
(b) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed as to give an advantage to the former over the latter class; and
(c) Unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement.
Question 2. Have the inhabitants of the United States, while exercising the liberties referred to in said article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States?
Question 3. Can the exercise by the inhabitants of the United States of the liberties referred to in the said article be subjected, without the consent of the United States, to the requirements of entry or report at custom-houses or the payment of light or harbor and other dues, or to any other similar requirement or condition or exaction ?
Question 4. Under the provision of the said article that the American fishermen shall be admitted to enter certain bays or harbors for shelter, repairs, wood, or water, and for no other pur- pose whatever, but that they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein or in any other manner whatever abusing the privileges thereby re- served to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbor or other dues, or entering or reporting at custom-houses or any similar conditions?
150 THE HAGUE COURT REPORTS
Question 5. From where must 'be measured the "three marine miles of any of the coasts, bays, creeks, or harbors" referred to in the said article?
Question 6. Have the inhabitants of the United States the lib- erty under the said article or otherwise to take fish in the bays, harbors, and creeks on that part of the southern coast of Newfound- land which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands?
Question 7. Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article 1 of the treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts ac- corded by agreement or otherwise to United States trading vessels generally ?
ARTICLE 2
Either party may call the attention of the tribunal to any legis- lative or executive act of the other party, specified within three months of the exchange of notes enforcing this agreement, and which is claimed to be inconsistent with the true interpretation of the treaty of 1818; and may call upon the tribunal to express in its award its opinion upon such acts, and to point out in what respects, if any, they are inconsistent with the principles laid down in the award in reply to the preceding questions ; and each party agrees to conform to such opinion.
ARTICLE 3
If any question arises in the arbitration regarding the reason- ableness of any regulation or otherwise which requires an examina- tion of the practical effect of any provisions in relation to the con- ditions surrounding the exercise of the liberty of fishery enjoyed by the inhabitants of the United States, or which requires expert information about the fisheries themselves, the tribunal may, in that case, refer such question to a commission of three expert specialists in such matters; one to be designated by each of the parties hereto, and the third, who shall not be a national of either party, to be designated by the tribunal. This commission shall examine into
THE NORTH ATLANTIC COAST FISHERIES CASE 151
and report their conclusions on any question or questions so re- ferred to it by the tribunal and such report shall be considered by the tribunal and shall, if incorporated by them in the award, be accepted as a part thereof.
Pending the report of the commission upon the question or ques- tions so referred and without awaiting such report, the tribunal may make a separate award upon all or any other questions before it, and such separate award, if made, shall become immediately ef- fective, provided that the report aforesaid shall not be incorporated in the award until it has been considered by the tribunal. The ex- penses of such commission shall be borne in equal moieties by the parties hereto.
ARTICLE 4
The tribunal shall recommend for the consideration of the high contracting Parties rules and a method of procedure under which all questions which may arise in future regarding the exercise of the liberties above referred to may be determined in accordance with the principles laid down in the award. If the high contracting Parties shall not adopt the rules and method of procedure so recom- mended, or if they shall not, subsequently to the delivery of the award, agree upon such rules and methods, then any differences which may arise in the future between the high contracting Parties relating to the interpretation of the treaty of 1818 or to the effect and application of the award of the tribunal shall be referred in- formally to the Permanent Court at The Hague for decision by the summary procedure provided in Chapter IV of the Hague Convention of the 18th October, 1907.
ARTICLE 5
The tribunal of arbitration provided for herein shall be chosen from the general list of members of the Permanent Court at The Hague, in accordance with the provisions of Article 45 of the Convention for the settlement of international disputes, concluded at the Second Peace Conference at The Hague on the 18th of Octo- ber, 1907. The provisions of said Convention, so far as applicable and not inconsistent herewith, and excepting Articles 53 and 54, shall govern the proceedings under the submission herein pro- vided for.
152 THE HAGUE COURT REPORTS
The time allowed for the direct agreement of His Britannic Majesty and the President of the United States on the composition of such tribunal shall be three months.
ARTICLE 6
The pleadings shall be communicated in the order and within the time following:
As soon as may be and within a period not exceeding seven months from the date of the exchange of notes making this agree- ment binding the printed case of each of the parties hereto, accom- panied by printed copies of the documents, the official correspon- dence, and all other evidence on which each party relies, shall be delivered in duplicate (with such additional copies as may be agreed upon) to the agent of the other party. It shall be sufficient for this purpose if such case is delivered at the British Embassy at Wash- ington or at the American Embassy at London, as the case may be, for transmission to the agent for its Government.
Within fifteen days thereafter such printed case and accompany- ing evidence of each of the parties shall be delivered in duplicate to each member of the tribunal, and such delivery may be made by depositing within the stated period the necessary number of copies with the International Bureau at The Hague for transmission to the arbitrators.
After the delivery on both sides of such printed case, either party may, in like manner, and within four months after the expiration of the period above fixed for the delivery to the agents of the case, deliver to the agent of the other party (with such additional copies as may be agreed upon), a printed counter-case accompanied by printed copies of additional documents, correspondence, and other evidence in reply to the case, documents, correspondence, and other evidence so presented by the other party, and within fifteen days thereafter such party shall, in like manner as above provided, de- liver in duplicate such counter-case and accompanying evidence to each of the arbitrators.
The foregoing provisions shall not prevent the tribunal from per- mitting either party to rely at the hearing upon documentary or other evidence which is shown to have become open to its investiga- tion or examination or available for use too late to be submitted
THE NORTH ATLANTIC COAST FISHERIES CASE 153
within the period hereinabove fixed for the delivery of copies of evidence, but in case any such evidence is to be presented, printed copies of it, as soon, as possible after it is secured, must be de- livered, in like manner as provided for the delivery of copies of other evidence, to each of the arbitrators and to the agent of the other party. The admission of any such additional evidence, how- ever, shall be subject to such conditions as the tribunal may impose, and the other party shall have a reasonable opportunity to offer additional evidence in rebuttal.
The tribunal shall take into consideration all evidence which is offered by either party.
ARTICLE 7
If in the case or counter-case (exclusive of the accompanying evidence) either party shall have specified or referred to any docu- ments, correspondence, or other evidence in its own exclusive posses- sion without annexing a copy, such party shall be bound, if the other party shall demand it within thirty days after the delivery of the case or counter-case respectively, to furnish to the party applying for it a copy thereof; and either party may, within the like time, demand that the other shall furnish certified copies or produce for inspection the originals of any documentary evidence adduced by the party upon whom the demand is made. It shall be the duty of the party upon whom any such demand is made to comply with it as soon as may be, and within a period not exceeding fifteen days after the demand has been received. The production for inspec- tion or the furnishing to the other party of official governmental publications, publishing, as authentic, copies of the documentary evidence referred to, shall be a sufficient compliance with such de- mand, if such governmental publications shall have been published prior to the 1st day of January, 1908. If the demand is not com- plied with, the reasons for the failure to comply must be stated to the tribunal.
ARTICLE 8
The tribunal shall meet within six months after the expiration of the period above fixed for the delivery to the agents of the case, and upon the assembling of the tribunal at its first session each party, through its agent or counsel, shall deliver in duplicate to
154 THE HAGUE COURT REPORTS
each of the arbitrators and to the agent and counsel of the other party (with such additional copies as may be agreed upon) a printed argument showing the points and referring to the evidence upon which it relies.
The time fixed by this agreement for the delivery of the case, counter-case, or argument, and for the meeting of the tribunal, may be extended by mutual consent of the parties.
ARTICLE 9
The decision of the tribunal shall, if possible, be made within two months from the close of the arguments on both sides, unless on the request of the tribunal the parties shall agree to extend the period.
It shall be made in writing, and dated and signed by each mem- ber of the tribunal, and shall be accompanied by a statement of reasons.
A member who may dissent from the decision may record his dissent when signing.
The language to be used throughout the proceedings shall be English.
ARTICLE 10
Each party reserves to itself the right to demand a revision ot the award. Such demand shall contain a statement of the grounds on which it is made and shall be made within five days of the pro- mulgation of the award, and shall be heard by the tribunal within ten days thereafter. The party making the demand shall serve a copy of the same on the opposite party, and both parties shall be heard in argument by the tribunal on said demand. The demand can only be made on the discovery of some new fact or circun> stance calculated to exercise a decisive influence upon the award and which was unknown to the tribunal and to the party demand- ing the revision at the time the discussion was closed, or upon the ground that the said award does not fully and sufficiently, within the meaning of this agreement, determine any question or ques- tions submitted. If the tribunal shall allow the demand for a re- vision, it shall afford such opportunity for further hearings and arguments as it shall deem necessary.
THE NORTH ATLANTIC COAST FISHERIES CASE 155
ARTICLE 11
The present agreement shall be deemed to be binding only when confirmed by the two Governments by an exchange of notes.
In witness whereof this agreement has been signed and sealed by His Britannic Majesty's Ambassador at Washington, the Right Honorable James Bryce, O.M., on behalf of Great Britain, and by the Secretary of State of the United States, Elihu Root, on behalf of the United States.
Done at Washington on the 27th day of January, one thousand nine hundred and nine.
JAMES BRYCE [SEAL] ELIHU ROOT [SEAL]
And whereas, the parties to the said agreement have by common accord, in accordance with Article 5, constituted as a tribunal of arbitration the following members of the Permanent Court at The Hague: Mr. H. Lammasch, Doctor of Law, professor of the University of Vienna, Aulic Councilor, member of the Upper House of the Austrian Parliament; his Excellency Jonkheer A. F. de Savornin Lohman, Doctor of Law, Minister of State, former Minister of the Interior, member of the Second Chamber of the Netherlands; the Honorable George Gray, Doctor of Laws, Judge of the United States Circuit Court of Appeals, former United States Senator; the Right Honorable Sir Charles Fitzpatrick, member of the Privy Council, Doctor of Laws, Chief Justice of Canada ; the Honorable Luis Maria Drago, Doctor of Law, former Minister of Foreign Affairs of the Argentine Republic, member of the Law Academy of Buenos Aires;
And whereas, the agents of the parties to the said agreement have duly and in accordance with the terms of the agreement com- municated to this tribunal their cases, counter-cases, printed argu- ments, and other documents;
And whereas, counsel for the parties have fully presented to this tribunal their oral arguments in the sittings held between the first assembling of the tribunal on 1st June, 1910, to the close of the hearings on 12th August, 1910;
Now, therefore, this tribunal having carefully considered the said agreement, cases, counter-cases, printed and oral arguments, and the
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documents presented by either side, after due deliberation makes the following decisions and awards :
QUESTION 1
To what extent are the following contentions or either of them justified?
It is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said article, which the in- habitants of the United States have forever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordi- nances, or rules, as, for example, to regulations in respect of ( 1 ) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; (3) any other matters of a similar character relating to fishing; such regulations being reasonable, as being, for instance —
(a) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and of the liberty which by the said Article 1 the inhabitants of the United States have therein in common with British subjects;
(b) Desirable on grounds of public order and morals;
(c) Equitable and fair as between local fishermen and the in- habitants of the United States exercising the said treaty liberty, and not so framed as to give unfairly an advantage to the former over the latter class.
It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar char- acter—
(a) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the ex- ercise thereof; and
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(&) Unless they are reasonable in themselves and fair as be- tween local fishermen and fishermen coming from the United States, and not so framed as to give an advantage to the former over the latter class; and
(c) Unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement.
Question I, thus submitted to the tribunal, resolves itself into two main contentions:
1st. Whether the right of regulating reasonably the liberties con- ferred by the treaty of 1818 resides in Great Britain;
2nd. And, if such right does so exist, whether such reasonable exercise of the right is permitted to Great Britain without the oc- cord and concurrence of the United States.
The treaty of 1818 contains no explicit disposition in regard to the right of regulation, reasonable or otherwise; it neither reserves that right in express terms, nor refers to it in any way. It is there- lore incumbent on this tribunal to answer the two questions above indicated by interpreting the general terms of Article 1 of the treaty, and more especially the words "the inhabitants of the United States shall have, for ever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind." This interpretation must be conformable to the general import of the instrument, the general intention of the parties to it, the subject matter of the contract, the expressions actually used and the evidence submitted.
Now in regard to the preliminary question as to whether the right of reasonable regulation resides in Great Britain:
Considering that the right to regulate the liberties conferred by the treaty of 1818 is an attribute of sovereignty, and as such must be held to reside in the territorial sovereign, unless the contrary be provided; and considering that one of the essential elements of sovereignty is that it is to be exercised within territorial limits, and that, failing proof to the contrary, the territory is coterminous with the sovereignty, it follows that the burden of the assertion in- volved in the contention of the United States (viz., that the right to regulate does not reside independently in Great Britain, the territorial sovereign) must fall on the United States. And for the purpose of sustaining this burden, the United States have put for- ward the following series of propositions, each one of which must be singly considered.
158 THE HAGUE COURT REPORTS
It is contended by the United States :
(1) That the French right of fishery under the treaty of 1713 designated also as a liberty, was never subjected to regula- tion by Great Britain, and therefore the inference is war- ranted that the American liberties of fishery are similarly exempted.
The tribunal is unable to agree with this contention :
(a) Because although the French right designated in 1713 merely "an allowance," (a term of even less force than that used in regard to the American fishery) was nevertheless converted, in practice, into an exclusive right, this concession on the part of Great Britain was presumably made because France, before 1713, claimed to be the sovereign of Newfoundland, and, in ceding the island, had, as the American argument says, "reserved for the bene- fit of its subjects the right to fish and to use the strand" ;
(b) Because the distinction between the French and American right is indicated by the different wording of the statutes for the observance of treaty obligations towards France and the United States, and by the British Declaration of 1783 ;
(c) And, also, because this distinction is maintained in the treaty with France of 1904, concluded at a date when the American claim was approaching its present stage, and by which certain common rights of regulation are recognized to France.
For the further purpose of such proof it is contended by the United States :
(2) That the liberties of fishery, being accorded to the inhabi- tants of the United States "for ever," acquire, by being in perpetuity and unilateral, a character exempting them from local legislation.
The tribunal is unable to agree with this contention : (a) Because there is no necessary connection between the dura- tion of a grant and its essential status in its relation to local regu- lation ; a right granted in perpetuity may yet be subject to regula- tion, or, granted temporarily, may yet be exempted therefrom ; or being reciprocal may yet be unregulated, or being unilateral may yet
THE NORTH ATLANTIC COAST FISHERIES CASE 159
be regulated : as is evidenced by the claim of the United States that the liberties of fishery accorded by the reciprocity treaty of 1854 and the treaty of 1871 were exempt from regulation, though they were neither permanent nor unilateral ;
(b) Because no peculiar character need be claimed for these lil> erties in order to secure their enjoyment in perpetuity, as is evi- denced by the American negotiators in 1818 asking for the insertion of the words "for ever." International law in its modern develop- ment recognizes that a great number of treaty obligations are not annulled by war, but at most suspended by it ;
(c) Because the liberty to dry and cure is, pursuant to the terms of the treaty, provisional and not permanent, and is nevertheless, in respect of the liability to regulation, identical in its nature with, and never distinguished from, the liberty to fish.
For the further purpose of such proof, the United States allege: (3) That the liberties of fishery granted to the United States constitute an international servitude in their favor over the territory of Great Britain, thereby involving a derogation from the sovereignty of Great Britain, the servient State, and that therefore Great Britain is deprived, by reason of the grant, of its independent right to regulate the fishery.
The tribunal is unable to agree with this contention:
(a) Because there is no evidence that the doctrine of inter- national servitude was one with which either American or British statesmen were conversant in 1818, no English publicists employing the term before 1818, and the mention of it in Mr. Gallatin's report being insufficient;
(&) Because a servitude in the French law, referred to by Mr. Gallatin, can, since the code, be only real and can not be personal (Code Civil, Art. 686) ;
(c) Because a servitude in international law predicates an ex- press grant of a sovereign right and involves an analogy to the relation of a praedium dominans and a praedium serviens; whereas by the treaty of 1818 one State grants a liberty to fish, which is not a sovereign right, but a purely economic right, to the inhabitants of another State ;
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(d) Because the doctrine of international servitude in the sense which is now sought to be attributed to it originated in the peculiar and now obsolete conditions prevailing in the Holy Roman Empire of which the domini terrae were not fully sovereigns ; they holding territory under the Roman Empire, subject at least theoretically, and in some respects also practically, to the courts of that Empire ; their right being, moreover, rather of a civil than of a public nature, partaking more of the character of dominium than of intr- perium, and therefore certainly not a complete sovereignty. And because in contradistinction to this quasi-sovereignty with its inco- herent attributes acquired at various times, by various means, and not impaired in its character by being incomplete in any one respect or by being limited in favor of another territory and its possessor, the modern State, and particularly Great Britain, has never ad- mitted partition of sovereignty, owing to the constitution of a modern State requiring essential sovereignty and independence;
(e) Because this doctrine being but little suited to the principle of sovereignty which prevails in States under a system of con- stitutional government such as great Britain and the United States, and to the present international relations of sovereign States, has found little, if any, support from modern publicists. It could there- fore in the general interest of the community of nations, and of the parties to this treaty, be affirmed by this tribunal only on the express evidence of an international contract;
(/) Because even if these liberties of fishery constituted an in- ternational servitude, the servitude would derogate from the sov- ereignty of the servient State only in so far as the exercise of the rights of sovereignty by the servient State would be contrary to the exercise of the servitude right by the dominant State. Whereas it is evident that, though every regulation of the fishery is to some extent a limitation, as it puts limits to the exercise of the fishery at will, yet such regulations as are reasonable and made for the purpose of securing and preserving the fishery and its exercise for the common benefit, are clearly to be distinguished from those re- strictions and "molestations," the annulment of which was the purpose of the American demands formulated by Mr. Adams in 1782, and such regulations consequently can not be held to be in- consistent with a servitude;
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(#) Because the fishery to which the inhabitants of the United States were admitted in 1783, and again in 1818, was a regulated fishery, as is evidenced by the following regulations:
Act 15 Charles II, Cap. 16, s. 7 (1663) forbidding "to lay any seine or other net in or near any harbor in Newfoundland, whereby to take the spawn or young fry of the Poor-John, or for any other use or uses, except for the taking of bait only," which had not been superseded either by the order in council of March 10th, 1670, or by the statute 10 and 11 Wm. Ill, Cap. 25, 1699. The order in council provides expressly for the obligation "to submit unto and to observe all rules and orders as are now, or hereafter shall be established," an obligation which can not be read as referring only to the rules established by this very act, and having no reference to anteceding rules "as are now established/' In a similar way, the statute of 1699 preserves in force prior legislation, conferring the freedom of fishery only "as fully and freely as at any time here- tofore." The order in council, 1670, provides that the admirals, who always were fishermen, arriving from an English or Welsh port, "see that His Majesty's rules and orders concerning the regu- lation of the fisheries are duly put in execution" (sec. 13). Like- wise the Act 10 and 11 Wm. Ill, Cap. 25 (1699) provides that the admirals do settle differences between the fishermen arising in respect of the places to be assigned to the different vessels. As to Nova Scotia, the proclamation of 1665 ordains that no one shrill fish without license ; that the licensed fishermen are obliged "to ob- serve all laws and orders which now are made and published, or shall hereafter be made and published in this jurisdiction," and that they shall not fish on the Lord's day and shall not take fish at the time they come to spawn. The judgment of the Chief Justice of Newfoundland, October 26th, 1820, is not held by the tribunal sufficient to set aside the proclamations referred to. After 1783, the statute 26 Geo. Ill, Cap. 26, 1786, forbids "the use, on the shores of Newfoundland, of seines or nets for catching cod by haul- ing on shore or taking into boat, with meshes less than 4 inches" ; a prohibition which can not be considered as limited to the bank fishery. The act for regulating the fisheries of New Brunswick, 1793, which forbids "the placing of nets or seines across any cove or creek in the province so as to obstruct the natural course of
162 THE HAGUE COURT REPORTS
fish" and which makes specific provision for fishing in the harbor of St. John, as to the manner and time of fishing, can not be read as being limited to fishing from the shore. The act for regulating the fishing on the coast of Northumberland (1799) contains very elaborate dispositions concerning the fisheries in the bay of Mira- michi which were continued in 1823, 1829, and 1834. The statutes of Lower Canada, 1788 and 1807, forbid the throwing overboard of offal. The fact that these acts extend the prohibition over a greater distance than the first marine league from the shore may make them non-operative against foreigners without the territorial limits of Great Britain, but is certainly no reason to deny their obligatory character for foreigners within these limits;
(/z) Because the fact that Great Britain rarely exercised the right of regulation in the period immediately succeeding 1818 is to be explained by various circumstances and is not evidence of the non-existence of the right ;
(») Because the words "in common with British subjects" tend to confirm the opinion that the inhabitants of the United States were admitted to a regulated fishery ;
(/) Because the statute of Great Britain, 1819, which gives legis- lative sanction to the treaty of 1818, provides for the making of "regulations with relation to the taking, drying and curing fish by inhabitants of the United States in 'common.' "
For the purpose of such proof, it is further contended by the United States, in this latter connection :
(4) That the words "in common with British subjects" used in the treaty should not be held as importing a common sub- jection to regulation, but as intending to negative a possible pretension on the part of the inhabitants of the United States to liberties of fishery exclusive of the right of British sub- jects to fish.
The tribunal is unable to agree with this contention : (a) Because such an interpretation is inconsistent with the his- torical basis of the American fishing liberty. The ground on which Mr. Adams founded the American right in 1782 was that the people then constituting the United States had always, when still under
THE NORTH ATLANTIC COAST FISHERIES CASE 163
British rule, a part in these fisheries and that they must continue to enjoy their past right in the future. He proposed "that the sub- jects of His Britannic Majesty and the people of the United States shall continue to enjoy unmolested the right to take fish . . . where the inhabitants of both countries used, at any time hereto- fore, to fish." The theory of the partition of the fisheries, which by the American negotiators had been advanced with so much force, negatives the assumption that the United States could ever pretend to an exclusive right to fish on the British shores; and to insert a special disposition to that end would have been wholly superfluous ;
(b) Because the words "in common" occur in the same con- nection in the treaty of 1818 as in the treaties of 1854 and 1871. It will certainly not be suggested that in these treaties of 1854 and 1871 the American negotiators meant by inserting the words "in common" to imply that without these words American citi- zens would be precluded from the right to fish on their own coasts and that, on American shores, British subjects should have an ex- clusive privilege. It would have been the very opposite of the con- cept of territorial waters to suppose that, without a special treaty provision, British subjects could be excluded from fishing in Brit- ish waters. Therefore that can not have been the scope and the sense of the words "in common" ;
(c) Because the words "in common" exclude the supposition that American inhabitants were at liberty to act at will for the pur- pose of taking fish, without any regard to the coexisting rights of other persons entitled to do the same thing; and because these words admit them only as members of a social community, subject to the ordinary duties binding upon the citizens of that community, as to the regulations made for the common benefit; thus avoiding the bellum omnium contra onmes which would otherwise arise in the exercise of this industry;
(d) Because these words are such as would naturally suggest themselves to the negotiators of 1818 if their intention had been to express a common subjection to regulations as well as a com- mon right.
In the course of the Argument it has also been alleged by the United States:
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(5) That the treaty of 1818 should be held to have entailed a transfer or partition of sovereignty, in that it must in re- spect to the liberties of fishery be interpreted in its rela- tion to the treaty of 1783; and that this latter treaty was an act of partition of sovereignty and of separation, and as such was not annulled by the war of 1812.
Although the tribunal is not called upon to decide the issue whether the treaty of 1783 was a treaty of partition or not, the questions involved therein having been set at rest by the subse- quent treaty of 1818, nevertheless the tribunal could not forbear to consider the contention on account of the important bearing the controversy has upon the true interpretation of the treaty of 1818. In that respect the tribunal is of opinion :
(a) That the right to take fish was accorded as a condition of peace to a foreign people; wherefore the British negotiators re- fused to place the right of British subjects on the same footing with those of American inhabitants; and further, refused to insert the words also proposed by Mr. Adams ("continue to enjoy") in the second branch of Art. 3 of the treaty of 1783;
(6) That the treaty of 1818 was in different terms, and very different in extent, from that of 1783, and was made for different considerations. It was, in other words, a new grant.
For the purpose of such proof it is further contended by the United States:
(6) That as contemporary commercial treaties contain express provisions for submitting foreigners to local legislation, and the treaty of 1818 contains no such provision, it should be held, a contrario, that inhabitants of the United States ex- ercising these liberties are exempt from regulation.
The tribunal is unable to agree with this contention : (a) Because the commercial treaties contemplated did not ad- mit foreigners to all and equal rights, seeing that local legislation excluded them from many rights of importance, e. g., that of hold- ing land; and the purport of the provisions in question conse- quently was to preserve these discriminations. But no such dis-
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criminations existing in the common enjoyment of the fishery by American and British fishermen, no such provision was required;
(b) Because no proof is furnished of similar exemptions of for- eigners from local legislation in default of treaty stipulations sub- jecting them thereto;
(c) Because no such express provision for subjection of the nationals of either party to local law was made either in this treaty, in respect to their reciprocal admission to certain territories as agreed in Art. 3, or in Art. 3 of the treaty of 1794; although such subjection was clearly contemplated by the parties.
For the purpose of such proof it is further contended by the United States:
(7) That, as the liberty to dry and cure on the treaty coasts and to enter bays and harbors on the non-treaty coasts are both subjected to conditions, and the latter to specific restrictions, it should therefore be held that the liberty to fish should be subjected to no restrictions, as none are provided for in the treaty.
The tribunal is unable to apply the principle of expressio unius exclusio altcrius to this case :
(a) Because the conditions and restrictions as to the liberty to dry and cure on the shore and to enter the harbors are limitations of the rights themselves, and not restrictions of their exercise. Thus the right to dry and cure is limited in duration, and the right to enter bays and harbors is limited to particular purposes ;
(b) Because these restrictions of the right to enter bays and harbors applying solely to American fishermen must have been expressed in the treaty, whereas regulations of the fishery, applying equally to American and British, are made by right of territorial sovereignty.
For the purpose of such proof it has been contended by the United States:
(8) That Lord Bathurst in 1815 mentioned the American right under the treaty of 1783 as a right to be exercised "at the
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discretion of the United States"; and that this should be held as to be derogatory to the claim of exclusive regula- tion by Great Britain.
But the tribunal is unable to agree with this contention :
(a) Because these words implied only the necessity of an ex- press stipulation for any liberty to use foreign territory at the pleasure of the grantee, without touching any question as to regu- lation ;
(b) Because in this same letter Lord Bathurst characterized this right as a policy "temporary and experimental, depending on the use that might be made of it, on the condition of the islands and places where it was to be exercised, and the more general con- veniences or inconveniences from a military, naval, and commer- cial point of view"; so that it can not have been his intention to acknowledge the exclusion of British interference with this right;
(c) Because Lord Bathurst in his note to Governor Sir C. Ham- ilton in 1819 orders the Governor to take care that the American fishery on the coast of Labrador be carried on in the same manner as previous to the late war; showing that he did not interpret the treaty just signed as a grant conveying absolute immunity from interference with the American fishery right.
For the purpose of such proof it is further contended by the
United States: (9) That on various other occasions following the conclusion
of the treaty, as evidenced by official correspondence, Great
Britain made use of expressions inconsistent with the claim
to a right of regulation.
The tribunal, unwilling to invest such expressions with an im- portance entitling them to affect the general question, considers that such conflicting or inconsistent expressions as have been exposed on either side are sufficiently explained by their relations to ephemeral phases of a controversy of almost secular duration, and should be held to be without direct effect on the principal and pres- ent issues.
Now with regard to the second contention involved in Ques-
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tion I, as to whether the right of regulation can be reasonably exercised by Great Britain without the consent of the United States :
Considering that the recognition of a concurrent right of con- sent in the United States would affect the independence of Great Britain, which would become dependent on the Government of the United States for the exercise of its sovereign right of regulation, and considering that such a co-dominium would be contrary to the constitution of both sovereign States; the burden of proof is im- posed on the United States to show that the independence of Great Britain was thus impaired by international contract in 1818 and that a co-dominium was created.
For the purpose of such proof it is contended by the United States:
(10) That a concurrent right to cooperate in the making and enforcement of regulations is the only possible and proper security to their inhabitants for the" enjoyment of their lib- erties of fishery, and that such a right must be held to be implied in the grant of those liberties by the treaty under interpretation.
The tribunal is unable to accede to this claim on the ground of a right so implied :
(a) Because every State has to execute the obligations incurred by treaty bona fide, and is urged thereto by the ordinary sanctions of international law in regard to observance of treaty obligations. Such sanctions are, for instance, appeal to public opinion, publica- tion of correspondence, censure by parliamentary vote, demand for arbitration with the odium attendant on a refusal to arbitrate, rup- ture of relations, reprisal, etc. But no reason has been shown why this treaty, in this respect, should be considered as different from every other treaty under which the right of a State to regulate the action of foreigners admitted by it on its territory is recognized ;
(b) Because the exercise of such a right of consent by the United States would predicate an abandonment of its independence in this respect by Great Britain, and the recognition by the latter of a concurrent right of regulation in the United States. But the
168 THE HAGUE COURT REPORTS
treaty conveys only a liberty to take fish in common, and neither directly nor indirectly conveys a joint right of regulation;
(r) Because the treaty does not convey a common right of fishery, but a liberty to fish in common. This is evidenced by the attitude of the United States Government in 1823, with respect to the relations of Great Britain and France in regard to the fishery;
(d) Because if the consent of the United States were requisite for the fishery a general veto would be accorded them, the full ex- ercise of which would be socially subversive and would lead to the consequence of an unregulatable fishery ;
(e) Because the United States can not by assent give legal force and validity to British legislation ;
(/) Because the liberties to take fish in British territorial waters and to dry and cure fish on land in British territory are in principle on the same footing; but in practice a right of cooperation in the elaboration and enforcement of regulations in regard to the latter liberty (drying and curing fish on land) is unrealizable.
In any event, Great Britain, as the local sovereign, has the duty of preserving and protecting the fisheries. In so far as it is neces- sary for that purpose, Great Britain is not only entitled, but obliged, to provide for the protection and preservation of fisheries ; always remembering that the exercise of this right of legislation is limited by the obligation to execute the treaty in good faith. This has been admitted by counsel and recognized by Great Britain in limiting the right of regulation to that of reasonable regulation. The inherent defect of this limitation of reasonableness, without any sanction except in diplomatic remonstrance, has been supplied by the submission to arbitral award as to existing regulations in accordance with Arts. 2 and 3 of the special agreement, and as to further regulation by the obligation to submit their reasonableness to an arbitral test in accordance with Art. 4 of the agreement.
It is finally contended by the United States:
That the United States did not expressly agree that the liberty granted to them could be subjected to any restric- tion that the grantor might choose to impose on the ground that in her judgment such restriction was reasonable. And that while admitting that all laws of a general character,
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controlling the conduct of men within the territory of Great Britain, are effective, binding, and beyond objection by the United States, and competent to be made upon the sole de- termination of Great Britain or her colony, without ac- countability to anyone whomsoever ; yet there is somewhere a line, beyond which it is not competent foi Great Britain to go, or -beyond which she can not rightfully go, because to go beyond it would be an invasion of the right granted to the United States in 1818. That the legal effect of the grant of 1818 was not to leave the determination as to where that line is to be drawn to the uncontrolled judgment of the grantor, either upon the grantor's consideration as to what would be a reasonable exercise of its sovereignty over the British Empire, or upon the grantor's consideration of what would be a reasonable exercise thereof towards the grantee.
But this contention is founded on assumptions, which this tribunal can not accept for the following reasons in addition to those already set forth:
(a) Because the line by which the respective rights of both parties accruing out of the treaty are to be circumscribed, can refer only to the right granted by the treaty ; that is to say to the liberty of taking, drying, and curing fish by the American inhabitants in certain British waters in common with British subjects, and not to the exercise of rights of legislation by Great Britain not referred <<> in the treaty;
(b) Because a line which would limit the exercise of sov- ereignty of a State within the limits of its own territory, can be drawn only on the ground of express stipulation, and not by im- plication from stipulations concerning a different subject-matter;
(c) Because the line in question is drawn according to the prin- ciple of international law that treaty obligations are to be executed in perfect good faith, therefore excluding the right to legislate at will concerning the subject-matter of the treaty, and limiting the exercise of sovereignty of the States bound by a treaty with respect to that subject-matter to such acts as are consistent with the treaty;
(d) Because on a true construction of the treaty the question
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does not arise whether the United States agreed that Great Britain should retain her right to legislate with regard to the fisheries in her own territory; but whether the treaty contains an abdication by Great Britain of the right which Great Britain, as the sovereign power, undoubtedly possessed when the treaty was made, to regu- late those fisheries;
(e) Because the right to make reasonable regulations, not in- consistent with the obligations of the treaty, which is all that is claimed by Great Britain, for a fishery which both parties admit requires regulation for its preservation, is not a restriction of or an invasion of the liberty granted to the inhabitants of the United States. This grant does not contain words to justify the assump- tion that the sovereignty of Great Britain upon its own territory was in any way affected; nor can words be found in the treaty transferring any part of that sovereignty to the United States. Great Britain assumed only duties with regard to the exercise of its sovereignty. The sovereignty of Great Britain over the coastal waters and territory of Newfoundland remains after the treaty as unimpaired as it was before. But from the treaty results an ob- ligatory relation whereby the right of Great Britain to exercise its sovereignty by making regulations is limited to such regulations as are made in good faith, and are not in violation of the treaty ;
(/) Finally, to hold that the United States, the grantee of the fishing right, has a voice in the preparation of fishery legislation involves the recognition of a right in that country to participate in the internal legislation of Great Britain and her colonies, and to that extent would reduce these countries to a state of dependence.
While therefore unable to concede the claim of the United States as based on the treaty, this tribunal considers that such claim has been and is to some extent, conceded in the relations now existing between the two parties. Whatever may have been the situation under the treaty of 1818 standing alone, the exercise of the right of regulation inherent in Great Britain has been, and is, limited by the repeated recognition of the obligations already referred to, by the limitations and liabilities accepted in the special agreement, by the unequivocal position assumed by Great Britain in the presenta- tion of its case before this tribunal, and by the consequent view of this tribunal that it would be consistent with all the circumstances,
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as revealed by this record, as to the duty of Great Britain, that she should submit the reasonableness of any future regulation to such an impartial arbitral test, affording full opportunity therefor, as is hereafter recommended under the authority of Article 4 of the special agreement, whenever the reasonableness of any regulation is objected to or challenged by the United States in the manner, and within the time hereinafter specified in the said recommendation.
Now therefore this tribunal decides and awards as follows:
The right of Great Britain to make regulations without the con- sent of the United States, as to the exercise of the liberty to take fish referred to in Article 1 of the treaty of October 20th, 1818, in the form of municipal laws, ordinances, or rules of Great Britain, Canada, or Newfoundland is inherent to the sovereignty of Great Britain.
The exercise of that right by Great Britain is, however, limited by the said treaty in respect of the said liberties therein granted to the inhabitants of the United States in that such regulations must be made bona fide and must not be in violation of the said treaty.
Regulations which are ( 1 ) appropriate or necessary for the pro- tection and preservation of such fisheries, or (2) desirable or neces- sary on grounds of public order and morals without unnecessarily interfering with the fishery itself, and in both cases equitable and fair as between local and American fishermen, and not so framed as to give unfairly an advantage to the former over the latter class, are not inconsistent with the obligation to execute the treaty in good faith, and are therefore reasonable and not in violation of the treaty.
For the decision of the question whether a regulation is or is not reasonable, as being or not in accordance with the dispositions of the treaty and not in violation thereof, the treaty of 1818 contains no special provision. The settlement of differences in this respect that might arise thereafter was left to the ordinary means of diplo- matic intercourse. By reason, however, of the form in which Ques- tion I is put, and by further reason of the admission of Great Britain by her counsel before this tribunal that it is not now for either of the parties to the treaty to determine the reasonableness of any regulation made by Great Britain, Canada, or Newfound- land, the reasonableness of any such regulation, if contested, must
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be decided not by either of the parties, but by an impartial authority in accordance with the principles hereinabove laid down, and in the manner proposed in the recommendations made by the tribunal in virtue of Article 4 of the agreement.
The tribunal further decides that Article 4 of the agreement is, as stated by counsel of the respective parties at the argument, per- manent in its effect, and not terminable by the expiration of the general arbitration treaty of 1908, between Great Britain and the United States.
In execution, therefore, of the responsibilities imposed upon this tribunal in regard to Articles 2, 3, and 4 of the special agreement, we hereby pronounce in their regard as follows:
As TO ARTICLE 2
Pursuant to the provisions of this article, hereinbefore cited, either party has called the attention of this tribunal to acts of the other claimed to be inconsistent with the true interpretation of the treaty of 1818.
But in response to a request from the tribunal, recorded in Protocol No. XXVI of 19th July, for an exposition of the grounds of such objections, the parties replied as reported in Protocol No. XXX of 28th July to the following effect :
His Majesty's Government considered that it would be unneces- sary to call upon the tribunal for an opinion under the second clause of Article 2, in regard to the executive act of the United States of America in sending war-ships to the territorial waters in question, in view of the recognized motives of the United States of America in taking this action and of the relations maintained by their represen- tatives with the local authorities. And this being the sole act to which the attention of this tribunal has been called by His Maj- esty's Government, no further action in their behalf is required from this tribunal under Article 2.
The United States of America presented a statement in which their claim that specific provisions of certain legislative and execu- tive acts of the Governments of Canada and Newfoundland were inconsistent with the true interpretation of the treaty of 1818 was based on the contention that these provisions were not "reasonable" within the meaning of Question 1.
THE NORTH ATLANTIC COAST FISHERIES CASE 173
After calling upon this tribunal to express an opinion on these acts, pursuant to the second clause of Article 2, the United States of America pointed out in that statement that under Article 3 any question regarding the reasonableness of any regulation might be referred by the tribunal to a commission of expert specialists, and expressed an intention of asking for such reference under certain circumstances.
The tribunal having carefully considered the counter-statement presented on behalf of Great Britain at the session of August 2nd, is of opinion that the decision on the reasonableness of these regula- tions requires expert information about the fisheries themselves and an examination of the practical effect of a great number of these provisions in relation to the conditions surrounding the exercise of the liberty of fishery enjoyed by the inhabitants of the United States, as contemplated by Article 3. No further action on behalf of the United States is therefore required from this tribunal under Article 2.
As TO ARTICLE 3
As provided in Article 3, hereinbefore cited and above referred to, "any question regarding the reasonableness of any regulation, or otherwise, which requires an examination of the practical effect of any provisions surrounding the exercise of the liberty of fishery enjoyed by the inhabitants of the United States, or which requires expert information about the fisheries themselves, may be referred by this tribunal to a commission of expert specialists; one to be designated by each of the parties hereto and the third, who shall not be a national of either party, to be designated by the tribunal."
The tribunal now therefore calls upon the parties to designate within one month their national commissioners for the expert ex- amination of the questions submitted.
As the third non-national commissioner this tribunal designates Doctor P. P. C. Hoek, scientific adviser for the fisheries of the Netherlands, and if any necessity arises therefor a substitute may be appointed by the president oif this tribunal.
After a reasonable time, to be agreed on by the parties, for the expert commission to arrive at a conclusion, by conference, or, if necessary, by local inspection, the tribunal shall, if convoked bv the president at the request of either party, thereupon at the earliest
174 THE HAGUE COURT REPORTS
convenient date, reconvene to consider the report of the commission, and if it be on the whole unanimous shall incorporate it in the award. If not on the whole unanimous, i. e., on all points which in the opinion of the tribunal are of essential importance, the tribunal shall make its award as to the regulations concerned after consid- eration of the conclusions of the expert commissioners and after hearing argument by counsel.
But while recognizing its responsibilities to meet the obligations imposed on it under Article 3 of the special agreement, the tribunal hereby recommends as an alternative to having recourse to a recon- vention of this tribunal, that the parties should accept the unani- mous opinion of the commission or the opinion of the non-national commissioner on any points in dispute as an arbitral award rendered under the provisions of Chapter IV of the Hague Convention of 1907.
As TO ARTICLE 4
Pursuant to the provisions of this article, hereinbefore cited, this tribunal recommends for the consideration of the parties the follow- ing rules and method of procedure under which all questions which may arise in future regarding the exercise of the liberties above re- ferred to may be determined in accordance with the principles laid down in this award.
1
All future municipal laws, ordinances, or rules for the regulation of the fishery by Great Britain in respect of ( 1 ) the hours, days or seasons when fish may be taken on the treaty coasts; (2) the method, means and implements used in the taking of fish or in carrying on fishing operations; (3) any other regulation of a simi- lar character shall be published in the London Gazette two months before going into operation.
Similar regulations by Canada or Newfoundland shall be simi- larly published in the Canada Gazette and the Newfoundland Gazette respectively.
2
If the Government of the United States considers any such laws or regulations inconsistent with the treaty of 1818, it is entitled to so notify the Government of Great Britain within the two months referred to in Rule No. 1.
THE NORTH ATLANTIC COAST FISHERIES CASE 175
3
Any law or regulation so notified shall not come into effect with respect to inhabitants of the United States until the permanent mixed fishery commission has decided that the regulation is rea- sonable within the meaning of this award.
Permanent mixed fishery commissions for Canada and New- foundland respectively shall be established for the decision of such questions as to the reasonableness of future regulations, ^ contem- plated by Article 4 of the special agreement; these commissions shall consist of an expert national appointed by either party for five years. The third member shall not be a national of either party; he shall be nominated for five years by agreement of the parties, or failing such agreement within two months, he shall be nominated by Her Majesty the Queen of the Netherlands. The two national members shall be convoked by the Government of Great Britain within one month from the date of notification by the Government of the United States.
The two national members having failed to agree within one month, within another month the full commission, under the presi- dency of the umpire, is to be convoked by Great Britain. It must deliver its decision, if the two Governments do not agree otherwise, at the latest in three months. The umpire shall conduct the pro- cedure in accordance with that provided in Chapter IV of the Con- vention for the pacific settlement of international disputes, except in so far as herein otherwise provided.
The form of convocation of the commission including the terms of reference of the question at issue shall be as follows : "The pro- vision hereinafter fully set forth of an act dated ,
published in the , has been notified to the Govern- ment of Great Britain by the Government of the United States,
176 THE HAGUE COURT REPORTS
under date of , as provided by the award of the
Hague tribunal of September 7th, 1910.
Pursuant to the provisions of that award the Government of Great Britain hereby convokes the permanent mixed fishery commission for <c?5Lad_a> — composed of ,
(Newfoundland) ' r
commissioner for the United States of America, and of , commissioner for — <Can»<!?J which shall
(Newfoundland) '
meet at and render a decision within one month
as to whether the provision so notified is reasonable and consistent with the treaty of 1818, as interpreted by the award of the Hague tribunal of September 7th, 1910, and if not, in what respect it is unreasonable and inconsistent therewith.
Failing an agreement on this question within one month the commission shall so notify the Government of Great Britain in order that the further action required by that award may be taken for the decision of the above question.
The provision is as follows: "
The unanimous decision of the two national commissioners, or the majority decision of the umpire and one commissioner, shall be final and binding.
QUESTION 2
Have the inhabitants of the United States, while exercising the liberties referred to in said article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States?
In regard to this question the United States claim in substance:
1. That the liberty assured to their inhabitants by the treaty plainly includes the right to use all the means customary or appropriate for fishing upon the sea, not only ships and nets and boats, but crews to handle the ships and the nets and the boats;
2. That no right to control or limit the means which these in- habitants shall use in fishing can be admitted unless it is pro-
THE NORTH ATLANTIC COAST FISHERIES CASE 177
vided in the terms of the treaty and no right to question the nationality or inhabitancy of the crews employed is contained in the terms of the treaty.
And Great Britain claims:
1. That the treaty confers the liberty to inhabitants of the United States exclusively ;
2. That the Governments of Great Britain, Canada or New- foundland may, without infraction of the treaty, prohibit per- sons from engaging as fishermen in American vessels.
Now considering ( 1 ) that the liberty to take fish is an economic right attributed by the treaty; (2) that it is attributed to inhabitants of the United States, without any mention of their nationality; (3) that the exercise of an economic right includes the right to employ servants; (4) that the right of employing servants has not been limited by the treaty to the employment of persons of a distinct nationality or inhabitancy; (5) that the liberty to take fish as an economic liberty refers not only to the individuals doing the manual act of fishing, but also to those for whose profit the fish are taken.
But considering, that the treaty does not intend to grant to in- dividual persons or to a class of persons the liberty to take fish in certain waters "in common," that is to say in company, with in- dividual British subjects, in the sense that no law could forbid British subjects to take service on American fishing ships; (2) that the treaty intends to secure to the United States a share of the fisheries designated therein, not only in the interest of a certain class of individuals, but also in the interest of both the United States and Great Britain, as appears from the evidence and notably from the correspondence between Mr. Adams and Lord Bathurst in 1815; (3) that the inhabitants of the United States do not derive the liberty to take fish directly from the treaty, but from the United States Government as party to the treaty with Great Britain and moreover exercising the right to regulate the conditions under which its inhabitants may enjoy the granted liberty; (4) that it is in the interest of the inhabitants of the United States that the fishing liberty granted to them be restricted to exercise by them and re- moved from the enjoyment of other aliens not entitled by this treaty to participate in the fisheries; (5) that such restrictions have
178 THE HAGUE COURT REPORTS
been throughout enacted in the British Statute of June 15, 1819, and that of June 3, 1824, to this effect, that no alien or stranger whatsoever shall fish in the waters designated therein, except in so far as by treaty thereto entitled, and that this exception will, in virtue of the treaty of 1818, as hereinabove interpreted by this award, exempt from these statutes American fishermen fishing by the agency of non-inhabitant aliens employed in their service; (6) that the treaty does not affect the sovereign right of Great Britain as to aliens, non-inhabitants of the United States, nor the right of Great Britain to regulate the engagement of British subjects, while these aliens or British subjects are on British territory.
Now, therefore, in view of the preceding considerations this tri- bunal is of opinion that the inhabitants of the United States while exercising the liberties referred to in the said article have a right to employ, as members of the fishing crews of their vessels, persons not inhabitants of the United States.
But in view of the preceding considerations the tribunal, to pre- vent any misunderstanding as to the effect of its award, expresses the opinion that non-inhabitants employed as members of the fish- ing crews of United States vessels derive no benefit or immunity from the treaty and it is so decided and awarded.
QUESTION 3
Can the exercise by the inhabitants of the United States of the liberties referred to in the said article be subjected, without the consent of the United States, to the requirements of entry or report at custom-houses or the payment of light or harbor or other dues, or to any other similar requirement or condition or exaction?
The tribunal is of opinion as follows :
It is obvious that the liberties referred to in this question are those that relate to taking fish and to drying and curing fish on certain coasts as prescribed in the treaty of October 20, 1818. The exercise of these liberties by the inhabitants of the United States in the prescribed waters to which they relate, has no reference to any commercial privileges which may or may not attach to such vessels by reason of any supposed authority outside the treaty, which itself confers no commercial privileges whatever upon the
THE NORTH ATLANTIC COAST FISHERIES CASE 179
inhabitants of the United States or the vessels in which they may exercise the fishing liberty. It follows, therefore, that when the inhabitants of the United States are not seeking to exercise the commercial privileges accorded to trading vessels for the vessels in which they are exercising the granted liberty of fishing, they ought not to be subjected to requirements as to report and entry at cus- tom-houses that are only appropriate to the exercise of commercial privileges. The exercise of the fishing liberty is distinct from the exercise of commercial or trading privileges and it is not competent for Great Britain or her colonies to impose upon the former exac- tions only appropriate to the latter. The reasons for the require- ments enumerated in the case of commercial vessels, have no rela- tion to the case of fishing vessels.
We think, however, that the requirement that American fishing vessels should report, if proper conveniences and an opportunity for doing so are provided, is not unreasonable or inappropriate. Such a report, while serving the purpose of a notification of the presence of a fishing vessel in the treaty waters for the purpose of exercising the treaty liberty, while it gives an opportunity for a proper surveillance of such vessel by revenue officers, may also serve to afford to such fishing vessel protection from interference in the exercise of the fishing liberty. There should be no such re- quirement, however, unless reasonably convenient opportunity therefor be afforded in person or by telegraph, at a custom-house or to a customs official.
The tribunal is also of opinion that light and harbor dues, if not imposed on Newfoundland fishermen, should not be imposed on American fishermen while exercising the liberty granted by the treaty. To impose such dues on American fishermen only would constitute an unfair discrimination between them and Newfound- land fishermen and one inconsistent with the liberty granted to American fishermen to take fish, etc., "in common with the subjects of His Britannic Majesty/'
Further, the tribunal considers that the fulfilment of the require- ment as to report by fishing vessels on arrival at the fishery would be greatly facilitated in the interests of both parties by the adoption of a system of registration, and distinctive marking of the fishing
180 THE HAGUE COURT REPORTS
boats of both parties, analogous to that established by Articles 5 to 13, inclusive, of the international convention signed at The Hague, 8 May, 1882, for the regulation of the North Sea fisheries. The tribunal therefore decides and awards as follows : The requirement that an American fishing vessel should report, if proper conveniences for doing so are at hand, is not unreason- able, for the reasons stated in the foregoing opinion. There should be no such requirement, however, unless there be reasonably con- venient opportunity afforded to report in person or by telegraph, either at a custom-house or to a customs official.
But the exercise of the fishing liberty by the inhabitants of the United States should not be subjected to the purely commercial formalities of report, entry and clearance at a custom-house, nor to light, harbor or other dues not imposed upon Newfoundland fishermen.
QUESTION 4
Under the provision of the said article that the American fisher- men shall be admitted to enter certain bays or harbors for shelter, repairs, wood, or water, and for no other purpose whatever, but that they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein or in any other manner whatever abusing the privileges thereby reserved to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbor or other dues, or entering or reporting at custom-houses or any similar conditions ?
The tribunal is of opinion that the provision in the first article of the treaty of October 20th, 1818, admitting American fishermen to enter certain bays or harbors for shelter, repairs, wood and water, and for no other purpose whatever, is an exercise in large measure of those duties of hospitality and humanity which all civ- ilized nations impose upon themselves and expect the performance of from others. The enumerated purposes for which entry is per- mitted all relate to the exigencies in which those who pursue their perilous calling on the sea may be involved. The proviso which appears in the first article of the said treaty immediately after the so-called renunciation clause, was doubtless due to a recognition by
THE NORTH ATLANTIC COAST FISHERIES CASE 181
Great Britain of what was expected from the humanity and civiliza- tion of the then leading commercial nation of the world. To im- pose restrictions making the exercise of such privileges conditional upon the payment of light, harbor or other dues, or entering and reporting at custom-houses, or any similar conditions would be in- consistent with the grounds upon which such privileges rest and therefore is not permissible.
And it is decided and awarded that such restrictions are not permissible.
It seems reasonable, however, in order that these privileges ac- corded by Great Britain on these grounds of hospitality and human- ity should not be abused, that the American fishermen entering such bays for any of the four purposes aforesaid and remaining more than 48 hours therein, should be required, if thought neces- sary by Great Britain or the Colonial Government, to report, either in person or by telegraph, at a custom-house or to a customs official, if reasonably convenient opportunity therefor is afforded.
And it is so decided and awarded.
QUESTION 5
From where must be measured the "three marine miles of any of the coasts, bays, creeks, or harbors" referred to in the said article?
In regard to this question, Great Britain claims that the renun- ciation applies to all bays generally and
The United States contend that it applies to bays of a certain class or condition.
Now, considering that the treaty used the general term "bays" without qualification, the tribunal is of opinion that these words of the treaty must be interpreted in a general sense as applying to every bay on the coast in question that might be reasonably sup- posed to have been considered as a bay by the negotiators of the treaty under the general conditions then prevailing, unless the United States can adduce satisfactory proof that any restrictions or qualifications of the general use of the term were or should have been present to their minds.
182 THE HAGUE COURT REPORTS
And for the purpose of such proof the United States contend : 1st. That while a State may renounce the treaty right to fish in
foreign territorial waters, it can not renounce the natural
right to fish on the high seas.
But the tribunal is unable to agree with this contention. Be- cause though a State can not grant rights on the high seas it cer- tainly can abandon the exercise of its right to fish on the high seas within certain definite limits. Such an abandonment was made with respect to their fishing rights in the waters in question by France and Spain in 1763. By a convention between the United Kingdom and the United States in 1846, the two countries assumed owner- ship over waters in Fuca Straits at distances from JSe shore as great as 17 miles.
The United States contend moreover :
2d. That by the use of the term "liberty to fish" the United States manifested the intention to renounce the liberty in the waters referred to only in so far as that liberty was de- pendent upon or derived from a concession on the part of Great Britain, and not to renounce the right to fish in those waters where it was enjoyed by virtue of their natural right as an independent State.
But the tribunal is unable to agree with this contention :
(a) Because the term "liberty to fish" was used in the renun- ciatory clause of the treaty of 1818 because the same term had been previously used in the treaty of 1783 which gave the liberty; and it was proper to use in the renunciation clause the same term that was used in the grant with respect to the object of the grant ; and, in view of the terms of the grant, it would have been improper to use the term "right" in the renunciation. Therefore the conclu- sion drawn from the use of the term "liberty" instead of the term "right" is not justified;
(b) Because the term "liberty" was a term properly applicable tc the renunciation which referred not only to fishing in the terri- torial waters but also to drying and curing on the shore. This latter right was undoubtedly held under the provisions of the treaty
THE NORTH ATLANTIC COAST FISHERIES CASE 183
and was not a right accruing to the United States by virtue of any principle of international law.
3d. The United States also contend that the term "bays of His Britannic Majesty's Dominions" in the renunciatory clause must be read as including only those bays which were under the territorial sovereignty of Great Britain.
But the tribunal is unable to accept this contention : (a) Because the description of the coast on which the fishery is to be exercised by the inhabitants of the United States is ex- pressed throughout the treaty of 1818 in geographical terms and not by reference to political control; the treaty describes the coast as contained between capes;
(&) Because to express the political concept of dominion as equivalent to sovereignty, the word "dominion" in the singular would have been an adequate term and not "dominions" in the plural; this latter term having a recognized and well-settled mean- ing as descriptive of those portions of the earth which owe political allegiance to His Majesty; e. g., "His Britannic Majesty's do- minions beyond the seas."
4th. It has been further contended by the United States that the renunciation applies only to bays six miles or less in width inter -fauces terrae, those bays only being territorial bays, because the three-mile rule is, as shown by this treaty, a principle of international law applicable to coasts and should be strictly and systematically applied to bays.
But the tribunal is unable to agree with this contention : (a) Because admittedly the geographical character of a bay contains conditions which concern the interests of the territorial sovereign to a more intimate and important extent than do those connected with the open coast. Thus conditions of national and territorial integrity, of defense, of commerce and of industry are all vitally concerned with the control of the bays penetrating the national coast line. This interest varies, speaking generally in pro- portion to the penetration inland of the bay; but as no principle
184 THE HAGUE COURT REPORTS
of international law recognizes any specified relation between the concavity of the bay and the requirements for control by the terri- torial sovereignty, this tribunal is unable to qualify by the applica- tion of any new principle its interpretation of the treaty of 1818 as excluding bays in general from the strict and systematic appli- cation of the three-mile rule ; nor can this tribunal take cognizance in this connection of other principles concerning the territorial sovereignty over bays such as ten-mile or twelve-mile limits of exclusion based on international acts subsequent to the treaty of 1818 and relating to coasts of a different configuration and condi- tions of a different character ;
(fe) Because the opinion of jurists and publicists quoted in the proceedings conduce to the opinion that speaking generally the three-mile rule should not be strictly and systematically applied to bays;
(c) Because the treaties referring to these coasts, antedating the treaty of 1818, made special provisions as to bays, such as the treaties of 1686 and 1713 between Great Britain and France, and especially the treaty of 1778 between the United States and France. Likewise Jay's treaty of 1794 Art. 25, distinguished bays from the space "within cannon-shot of the coast" in regard to the right of seizure in times of war. If the proposed treaty of 1806 and the treaty of 1818 contained no disposition to that effect, the explana- tion may be found in the fact that the first extended the marginal belt to five miles, and also in the circumstance that the American proposition of 1818 in that respect was not limited to "bays," but extended to "chambers formed by headlands" and to "five marine miles from a right line from one headland to another," a proposition which in the times of the Napoleonic wars would have affected to a very large extent the operations of the British navy;
(d) Because it has not been shown by the documents and corre- spondence in evidence here that the application of the three-mile rule to bays was present to the minds of the negotiators in 1818 and they could not reasonably have been expected either to pre- sume it or to provide against its presumption ;
(e) Because it is difficult to explain the words in Art. 3 of the treaty under interpretation "country . . . together with its
THE NORTH ATLANTIC COAST FISHERIES CASE 185
bays, harbors and creeks" otherwise than that all bays without distinction as to their width were, in the opinion of the negotia- tors, part of the territory ;
(/) Because from the information before this tribunal it is evi- dent that the three-mile rule is not applied to bays strictly or sys- tematically either by the United States or by any other Power;
(g) It has been recognized by the United States that bays stand apart, and that in respect of them territorial jurisdiction may be exercised farther than the marginal belt in the case of Delaware Bay by the report of the United States Attorney General of May 19th, 1793 ; and the letter of Mr. Jefferson to Mr. Genet of Novem- ber 8th, 1793, declares the bays of the United States generally to be, "as being landlocked, within the body of the United States."
5th. In this latter regard it is further contended by the United States, that such exceptions only should be made from the application of the three-mile rule to bays as are sanctioned by conventions and established usage; that all exceptions for which the United States of America were responsible are so sanctioned; and that His Majesty's Government are unable to provide evidence to show that the bays concerned by the treaty of 1818 could be claimed as exceptions on these grounds either generally, or except possibly in one or two cases, specifically.
But the tribunal while recognizing that conventions and estab- lished usage might be considered as the basis for claiming as terri- torial those bays which on this ground might be called historic bays, and that such claims should be held valid in the absence of any principle of international law on the subject; nevertheless is unable to apply this, a contrario, so as to subject the bays in question to the three-mile rule, as desired by the United States:
(a) Because Great Britain has during this controversy asserted a claim to these bays generally, and has enforced such claim specif- ically in statutes or otherwise, in regard to the more important bays such as Chaleurs, Conception and Miramichi ;
(b) Because neither should such relaxations of this claim, as are in evidence, be construed as renunciations of it; nor should omis-
186 THE HAGUE COURT REPORTS
sions to enforce the claim in regard to bays as to which no con- troversy arose, be so construed. Such a construction by this tri- bunal would not only be intrinsically inequitable, but internationally injurious; in that it would discourage conciliatory diplomatic trans- actions and encourage the assertion of extreme claims in their fullest extent;
(r) Because any such relaxations in the extreme claim of Great Britain in its international relations are compensated by recogni- tions of it in the same sphere by the United States ; notably in rela- tions with France for instance in 1823 when they applied to Great Britain for the protection of their fishery in the bays on the western coast of Newfoundland, whence they had been driven by French war vessels on the ground of the pretended exclusive right of the French. Though they never asserted that their fishermen had been disturbed within the three-mile zone, only alleging that the disturb- ance had taken place in the bays, they claimed to be protected by Great Britain for having been molested in waters which were, as Mr. Rush stated, "clearly within the jurisdiction and sovereignty of Great Britain."
6th. It has been contended by the United States that the words "coasts, bays, creeks or harbors" are here used only to ex- press different parts of the coast and are intended to express and be equivalent to the word "coast," whereby the three marine miles would be measured from the sinuosities of the coast and the renunciation would apply only to the waters of bays within three miles.
But the tribunal is unable to agree with this contention :
(a) Because it is a principle of interpretation that words in a document ought not to be considered as being without any mean- ing if there is not specific evidence to that purpose and the inter- pretation referred to would lead to the consequence, practically, of reading the words "bays, coasts and harbors" out of the treaty; so that it would read "within three miles of any of the coasts" including therein the coasts of the bays and harbors ;
(b) Because the word "therein" in the proviso— "restrictions necessary to prevent their taking, drying or curing fish therein" can
THE NORTH ATLANTIC COAST FISHERIES CASE 187
refer only to "bays," and not to the belt of three miles along the coast; and can be explained only on the supposition that the words "bays, creeks and harbors'* are to be understood in their usual ordi- nary sense and not in an artificially restricted sense of bays within the three-mile belt ;
(c) Because the practical distinction for the purpose of this fishery between coasts and bays and the exceptional conditions per- taining to the latter has been shown from the correspondence and the documents in evidence, especially the treaty of 1783, to have been in all probability present to the minds of the negotiators of the treaty of 1818;
(d) Because the existence of this distinction is confirmed in the same article of the treaty by the proviso permitting the United States fishermen to enter bays for certain purposes;
(e) Because the word "coasts" is used in the plural form whereas the contention would require its use in the singular;
(/) Because the tribunal is unable to understand the term "bays" in the renunciatory clause in other than its geographical sense, by which a bay is to be considered as an indentation of the coast, bearing a configuration of a particular character easy to de- termine specifically, but difficult to describe generally.
The negotiators of the treaty of 1818 did probably not trouble themselves with subtle theories concerning the notion of "bays"; they most probably thought that everybody would know what was a bay. In this popular sense the term must be interpreted in the treaty. The interpretation must take into account all the indi- vidual circumstances which for any one of the different bays are to be appreciated, the relation of its width to the length of penetra- tion inland, the possibility and the necessity of its being defended by the State in whose territory it is indented; the special value which it has for the industry of the inhabitants of its shores; the distance which it is secluded from the highways of nations on the open sea and other circumstances not possible to enumerate in general.
For these reasons the tribunal decides and awards:
In case of bays the three marine miles are to be measured from a straight line drawn across the body of water at the place where
188 THE HAGUE COURT REPORTS
it ceases to have the configuration and characteristics of a bay. At all other places the three marine miles are to be measured fol- lowing the sinuosities of the coast.
But considering the tribunal can not overlook that this answer to Question 5, although correct in principle and the only one possible in view of the want of a sufficient basis for a more concrete answer, is not entirely satisfactory as to its practical applicability, and that it leaves room for doubts and differences in practice. Therefore the tribunal considers it its duty to render the decision more prac- ticable and to remove the danger of future differences by adjoining to it, a recommendation in virtue of the responsibilities imposed by Art. 4 of the special agreement.
Considering, moreover, that in treaties with France, with the North German Confederation and the German Empire and like- wise in the North Sea convention, Great Britain has adopted for similar cases the rule that only bays of ten miles width should be considered as those wherein the fishing is reserved to nationals. And that in the course of the negotiations between Great Britain and the United States a similar rule has been on various occasions pro- posed and adopted by Great Britain in instructions to the naval officers stationed on these coasts. And that though these circum- stances are not sufficient to constitute this a principle of interna- tional law, it seems reasonable to propose this rule with certain ex- ceptions, all the more that this rule with such exceptions has already formed the basis of an agreement between the two Powers.
Now therefore this tribunal in pursuance of the provisions of Art. 4 hereby recommends for the consideration and acceptance of the high contracting Parties the following rules and method of procedure for determining the limits of the bays hereinbefore enumerated.
1
In every bay not hereinafter specifically provided for the limits of exclusion shall be drawn three miles seaward from a straight line across the bay in the part nearest the entrance at the first point where the width does not exceed ten miles.
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In the following bays where the configuration of the coast and the local climatic conditions are such that foreign fishermen when with- in the geographic headlands might reasonably and bona fide believe themselves on the high seas, the limits of exclusion shall be drawn in each case between the headlands hereinafter specified as being those at and within which such fishermen might be reasonably ex- pected to recognize the bay under average conditions.
For the Baie des Chaleurs the line from the light at Birch Point on Miscou Island to Macquereau Point light ; for the Bay of Mira- michi, the line from the light at Point Escuminac to the light on the eastern point of Tabisintac Gully; for Egmont Bay, in Prince Edward Island, the line from the light at Cape Egmont to the light at West Point; and off St. Ann's Bay, in the province of Nova Scotia, the line from the light at Point Anconi to the nearest point on the opposite shore of the mainland.
For Fortune Bay, in Newfoundland, the line from Connaigre Head to the light on the southeasterly end of Brunet Island, thence to Fortune Head.
For or near the following bays the limits of exclusion shall be three marine miles seawards from the following lines, namely :
For or near Barrington Bay, in Nova Scotia, the line from the light on Stoddart Island to the light on the south point of Cape Sable, thence to the light at Baccaro Point ; at Chedabucto and St. Peter's Bays, the line from Cranberry Island light to Green Island light, thence to Point Rouge ; for Mira Bay, the line from the light on the east point of Scatari Island to the northeasterly point of Cape Morien; and at Placentia Bay, in Newfoundland, the line from Latine Point, on the eastern mainland shore, to the most southerly point of Red Island, thence by the most southerly point of Mera- sheen Island to the mainland.
Long Island and Bryer Island, on St. Mary's Bay, in Nova Scotia, shall, for the purpose of delimitation, be taken as the coasts of such bays.
It is understood that nothing in these rules refers either to the Bay of Fundy considered as a whole apart from its bays and creeks or as to the innocent passage through the Gut of Canso, which were
190 THE HAGUE COURT REPORTS
excluded by the agreement made by exchange of notes between Mr. Bacon and Mr. Bryce dated February 21st, 1909, and March 4th, 1909; or to Conception Bay, which was provided for by the decision of the Privy Council in the case of the Direct United States Cable Company v. The Anglo American Telegraph Company, in which decision the United States have acquiesced.
QUESTION 6
Have the inhabitants of the United States the liberty under the said article or otherwise, to take fish in the bays, harbors, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Is- lands, or on the Magdalen Islands?
In regard to this question, it is contended by the United States that the inhabitants of the United States have the liberty under Art. 1 of the treaty of taking fish in the bays, harbors and creeks on that part of the southern coast of Newfound- land which extends from Cape Ray to Rameau Islands or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands and on the Magdalen Islands. It is contended by Great Britain that they have no such liberty.
Now considering that the evidence seems to show that the inten- tion of the parties to the treaty of 1818, as indicated by the records of the negotiations and by the subsequent attitude of the Govern- ments was to admit the United States to such fishery, this tribunal is of opinion that it is incumbent on Great Britain to produce satis- factory proof that the United States are not so entitled under the treaty.
For this purpose Great Britain points to the fact that whereas the treaty grants to American fishermen liberty to take fish "on the coasts, bays, harbors, and creeks from Mount Joly on the southern coast of Labrador" the liberty is granted to the "coast" only of Newfoundland and to the "shore" only of the Magdalen Islands;
THE NORTH ATLANTIC COAST FISHERIES CASE 191
and argues that evidence can be found in the correspondence sub- mitted indicating an intention to exclude Americans from New- foundland bays on the treaty coast, and that no value would have been attached at that time by the United States Government to the liberty of fishing in such bays because there was no cod fishery there as there was in the bays of Labrador.
But the tribunal is unable to agree with this contention : (a) Because the words "part of the southern coast. . .from. . . . to" and the words "western and northern coast . . . from .... to," clearly indicate one uninterrupted coast-line ; and there is no reason to read into the words "coasts" a contradistinction to bays, in order to exclude bays. On the contrary, as already held in the answer to Question 5, the words "liberty, forever, to dry and cure fish in any of the unsettled bays, harbors and creeks of the southern part of the coast of Newfoundland hereabove described," indicate that in the meaning of the treaty, as in all the preceding treaties relating to the same territories, the words coast, coasts, harbors, bays, etc., are used, without attaching to the word "coast" the specific meaning of excluding bays. Thus in the provision of the treaty of 1783 giving liberty "to take fish on such part of the coast of Newfoundland as British fishermen shall use;" the word "coast" necessarily includes bays, because if the intention had been to prohibit the entering of the bays for fishing the following words "but not to dry or cure the same on that island," would have no meaning. The contention that in the treaty of 1783 the word "bays" is inserted lest otherwise Great Britain would have had the right to exclude the Americans to the three-mile line, is inadmissible, because in that treaty that line is not mentioned;
(&) Because the correspondence between Mr. Adams and Lord Bathurst also shows that during the negotiations for the treaty the United States demanded the former rights enjoyed under the treaty of 1783, and that Lord Bathurst in the letter of 30th October, 1815, made no objection to granting those "former rights" "placed under some modifications," which latter did not relate to the right of fish- ing in bays, but only to the "preoccupation of British harbors and creeks by the fishing vessels of the United States and the forcible exclusion of British subjects where the fishery might be most ad- vantageously conducted," and "to the clandestine introduction of
192 THE HAGUE COURT REPORTS
prohibited goods into the British colonies." It may be therefore assumed that the word "coast" is used in both treaties in the same sense, including bays;
(c) Because the treaty expressly allows the liberty to dry and cure in the unsettled bays, etc., of the southern part of the coast of Newfoundland, and this shows that, a fortiori, the taking of fish in those bays is also allowed ; because the fishing liberty was a lesser burden than the grant to cure and dry, and the restrictive clauses never refer to fishing in contradistinction to drying, but always to drying in contradistinction to fishing. Fishing is granted without drying, never drying without fishing;
(d) Because there is not sufficient evidence to show that the enumeration of the component parts of the coast of Labrador was made in order to discriminate between the coast of Labrador and the coast of Newfoundland;
(e) Because the statement that there is no codfish in the bays of Newfoundland and that the Americans only took interest in the codfishery is not proved ; and evidence to the contrary is to be found in Mr. John Adams' Journal of Peace Negotiations of November 25, 1782;
(/) Because the treaty grants the right to take fish of every kind, and not only codfish;
(g) Because the evidence shows that, in 1823, the Americans were fishing in Newfoundland bays and that Great Britain when summoned to protect them against expulsion therefrom by the French did not deny their right to enter such bays.
Therefore this tribunal is of opinion that American inhabitants are entitled to fish in the bays, creeks and harbors of the treaty coasts of Newfoundland and the Magdalen Islands and it is so decided and awarded.
QUESTION 7
Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article 1 of the treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agree- ment or otherwise to United States trading vessels generally.
THE NORTH ATLANTIC COAST FISHERIES CASE 193
Now assuming that commercial privileges on the treaty coasts are accorded by agreement or otherwise to United States trading vessels generally, without any exception, the inhabitants of the United States, whose vessels resort to the same coasts for the pur- pose of exercising the liberties referred to in Article 1 of the treaty of 1818, are entitled to have for those vessels when duly author- ized by the United States in that behalf, the above-mentioned com- mercial privileges, the treaty containing nothing to the contrary. But they can not at the same time and during the same voyage ex- ercise their treaty rights and enjoy their commercial privileges, because treaty rights and commercial privileges are submitted to different rules, regulations and restraints.
For these reasons this tribunal is of opinion that the inhabitants of the United States are so entitled in so far as concerns this treaty, there being nothing in its provisions to disentitle them provided the treaty liberty of fishing and the commercial privileges are not ex- ercised concurrently and it is so decided and awarded.
Done at The Hague, in the Permanent Court of Arbitration, in triplicate original, September 7th, 1910.
H. LAMMASCH
A. F. DE SAVORNIN LOHMAN
GEORGE GRAY
C. FITZPATRICK
Luis M. DRAGO
Signing the award, I state pursuant to Article 9, clause 2, of the special agreement my dissent from the majority of the tribunal in lespect to the considerations and enacting part of the award as to Question 5.
Grounds for this dissent have been filed at the International Bureau of the Permanent Court of Arbitration.
Luis M. DRAGO
THE NORTH ATLANTIC COAST FISHERIES CASE 195
DISSENTING OPINION OF LUIS M. DRAGO ON QUESTION 51
Counsel for Great Britain have very clearly stated that according to their contention the territoriality of the bays referred to in the treaty of 1818 is immaterial because whether they are or are not territorial, the United States should be excluded from fishing in them by the terms of the renunciatory clause, which simply refers to "bays, creeks or harbors of His Britannic Majesty's dominions" without any other qualification or description. If that were so, the necessity might arise of discussing whether or not a nation has the right to exclude another by contract or otherwise from any portion or portions of the high seas. But in my opinion the tribunal need not concern itself with such general question, the wording of the treaty being clear enough to decide the point at issue.
Article 1 begins with the statement that differences have arisen tespecting the liberty claimed by the United States for the inhab- itants thereof to take, dry and cure fish on "certain coasts, bays, harbors and creeks of His Britannic Majesty's dominions in Amer- ica," and then proceeds to locate the specific portions of the coast with its corresponding indentations, in which the liberty of taking, drying and curing fish should be exercised. The renunciatory clause, which the tribunal is called upon to construe, runs thus : "And the United States hereby renounce, forever, any liberty heretofore en- joyed or claimed by the inhabitants thereof, to take, dry or cure fish on, or within three marine miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's dominions in America not included within the above-mentioned limits." This language does not lend itself to different constructions. If the bays in which the liberty has been renounced are those "of His Britannic Majesty's dominions in America," they must necessarily be territorial bays, because in so far as they are not so considered they should belong to the high seas and consequently form no part of His Britannic Majesty's dominions, which, by definition, do not extend to the high seas. It can not be said, as has been suggested, that the use of the word "dominions," in the plural, implies a different meaning than would be conveyed by the same term as used in the singular, so that in the present case, '"the British dominions in America" ought to be considered as a mere geographical expression, without reference
Official report, p. 147.
196 THE HAGUE COURT REPORTS
to any right of sovereignty or "dominion/' It seems to me, on the contrary, that "dominions," or "possessions," or "estates," or such other equivalent terms, simply designate the places over which the "dominion" or property rights are exercised. Where there is no possibility of appropriation or dominion, as on the high seas, we can not speak of dominions. The "dominions" extend exactly to the point which the "dominion" reaches; they are simply the actual or physical thing over which the abstract power or authority, the right, a? given to the proprietor or the ruler, applies. The interpretation as to the territoriality of the bays as mentioned in the renunciatory clause of the treaty appears stronger when considering that the United States specifically renounced the "liberty," not the "right" to fish or to cure and dry fish. "The United States renounce, for- ever, any liberty heretofore enjoyed or claimed, to take, cure or dry fish on, or within three marine miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's dominions in Amer- ica." It is well known that the negotiators of the treaty of 1783 gave a very different meaning to the terms liberty and right, as distinguished from each other. In this connection Mr. Adams' Journal may be recited. To this Journal the British counter-case refers in the following terms: "From an entry in Mr. Adams' Journal it appears that he drafted an article by which he distin- guished the right to take fish (both on the high seas and on the shores) and the liberty to take and cure fish on the land. But on the following day he presented to the British negotiators a draft in which he distinguishes between the 'right' to take fish on the high seas, and the 'liberty' to take fish on the 'coasts/ and to dry and cure fish on the land . . . The British commissioner called attention to the distinction thus suggested by Mr. Adams ?nd pro- posed that the word liberty should be applied to the privileges both on the water and on the land. Mr. Adams thereupon rose up and made a vehement protest, as is recorded in his diary, against the suggestion that the United States enjoyed the fishing on the banks of Newfoundland by any other title than that of right. . . . The application of the word liberty to the coast fishery was left as Mr. Adams proposed." "The incident," proceeds the British case, "is of importance, since it shows that the difference between the two phrases was intentional." (British counter-case, page 17.) And the British argument emphasizes again the difference. "More cogent
THE NORTH ATLANTIC COAST FISHERIES CASE 197
still is the distinction between the words right and liberty. The word tight is applied to the sea fisheries, and the word liberty to the shore fisheries. The history of the negotiations shows that this distinc- tion was advisedly adopted." If then a liberty is a grant and not the recognition of a right; if, as the British case, counter-case and argument recognize, the United States had the right to fish in the open sea in contradistinction with the liberty to fish near the shores or portions of the shores; and if what has been renounced in the words of the treaty is the "liberty" to fish on, or within three miles of the bays, creeks and harbors of His Britannic Majesty's domin- ions, it clearly follows that such liberty and the corresponding re- nunciation refers only to such portions of the bays which were under the sovereignty of Great Britain and not to such other portions, if any, as form part of the high seas.
And thus it appears that far from being immaterial the terri- torially of bays is of the utmost importance. The treaty not con- taining any rule or indication upon the subject, the tribunal can not help a decision as to this point, which involves the second branch of the British contention that all so-called bays are not only geo- graphical but wholly territorial as well, and subject to the jurisdic- tion of Great Britain. The situation was very accurately described on almost the same lines as above-stated by the British memoran- dum sent in 1870 by the Earl of Kimberley to Governor Sir John Young: "The right of Great Britain to exclude American fisher- men from waters within three miles of the coasts is unambiguous, and, it is believed, uncontested. But there appears to be some doubt what are the waters described as within three miles of bays, creeks or harbors. When a bay is less than six miles broad its waters are within the three-mile limit, and therefore clearly within the meaning of the treaty; but when it is more than that breadth, the question arises wlicther it is a bay of Her Britannic Majesty's dominions. This is a question which has to be considered in each particular case with regard to international law and usage. When such a bay is not a bay of Her Majesty's dominions, the American fishermen shall be entitled to fish in it, except within three marine miles of the 'coast;' when it is a bay of Her Majesty's dominions they will not be entitled to fish within three miles of it, that is to say (it is presumed) within three miles of a line drawn from head- land to headland." (American Case Appendix, page 629.)
198 THE HAGUE COURT REPORTS
Now, it must be stated in the first place that there does not seem to exist any general rule of international law which may be con- sidered final, even in what refers to the marginal belt of territorial waters. The old rule of the cannon-shot, crystallized into the pres- ent three marine miles measured from low-water mark, may be modified at a later period inasmuch as certain nations claim a wider jurisdiction and an extension has already been recommended by the Institute of International Law. There is an obvious reason for that. The marginal strip of territorial waters based originally on the cannon-shot, was founded on the necessity of the riparian State to protect itself from outward attack, by providing something in the nature of an insulating zone, which very reasonably should be ex- tended with the accrued possibility of offense due to the wider range of modern ordnance. In what refers to bays, it has been proposed as a general rule (subject to certain important exceptions) that the marginal belt of territorial waters should follow the sinuosities of the coast more or less in the manner held by the United States in the present contention, so that the marginal belt being of three miles, as in the treaty under consideration, only such bays should be held as territorial as have an entrance not wider than six miles. (See Sir Thomas Barclay's Report to Institute of International Law, 1894, page 129, in which he also strongly recommends these limits. ) This is the doctrine which Westlake, the eminent English writer on inter- national law, has summed up in very few words: "As to bays," he says, "if the entrance to one of them is not more than twice the width of the littoral sea enjoyed by the country in question — that is, not more than six sea miles in the ordinary case, eight in that of Norway, and so forth, — there is no access from the open sea to the bay except through the territorial water of that country, and the inner part of the bay will belong to that country no matter how widely it may expand. The line drawn from shore to shore at the part where, in approaching from the open sea, the width first con- tracts to that mentioned, will take the place of the line of low water, and the littoral sea belonging to the State will be measured out- wards from that line to the distance of three miles or more, proper to the State" (Westlake, vol. 1, page 187). But the learned author takes care to add : "But although this is the general rule it often meets with an exception in the case of bays which penetrate deep into the land and are called gulfs. Many of these are recognized
THE NORTH ATLANTIC COAST FISHERIES CASE 199
by immemorial usage as territorial sea of the States into which they penetrate, notwithstanding that their entrance is wider than the general rule for bays would give as a limit for such appropriation." And he proceds to quote as examples of this kind the Bay of Con- ception in Newfoundland, which he considers as wholly British, Chesapeake and Delaware Bays, which belong to the United States, and others. (Ibid, page 188.) The Institute of International Law, in its annual meeting of 1894, recommended a marginal belt of six miles for the general line of the coast and as a consequence estab- lished that for bays the line should be drawn up across at the near- est portion of the entrance toward the sea where the distance between the two sides do not exceed twelve miles. But the learned association very wisely added a proviso to the effect, "that bays should be so considered and measured unless a continuous and estab- lished usage has sanctioned a greater breadth." Many great author- ities are agreed as to that. Counsel for the United States proclaimed the right to the exclusive jurisdiction of certain bays, no matter what the width of their entrance should be, when the littoral nation has asserted its right to take it into their jurisdiction upon reasons which go always back to the doctrine of protection. Lord Black- burn, one of the most eminent of English judges, in delivering the opinion of the Privy Council about Conception Bay in Newfound- land, adhered to the same doctrine when he asserted the territoriality of that branch of the sea, giving as a reason for such finding "that the British Government for a long period had exercised dominion over this bay and its claim had been acquiesced in by other nations, so as to show that the bay had been for a long time occupied ex- clusively by Great Britain, a circumstance which, in the tribunals of any country, would be very important." "And moreover," he added, "the British Legislature has, by Acts of Parliament, declared it to be part of the British territory, and part of the country made subject to the legislation of Newfoundland." (Direct U. S. Cable Co. v. The Anglo-American Telegraph Co., Law Reports, 2 Ap- peal Cases, 374.)
So it may be safely asserted that a certain class of bays, which might be properly called the historical bays such as Chesapeake Bay and Delaware Bay in North America and the great estuary of the River Plata in South America, form a class distinct and apart and undoubtedly belong to the littoral country, whatever be their depth
200 THE HAGUE COURT REPORTS
of penetration and the width of their mouths, when such country has asserted its sovereignty over them, and particular circumstances such as geographical configuration, immemorial usage and above all, the requirements of self-defense, justify such a pretension. The right of Great Britain over the bays of Conception, Chaleur and Miramichi are of this description. In what refers to the other bays, as might be termed the common, ordinary bays, indenting the coasts, ever which no special claim or assertion of sovereignty has been made, there does not seem to be any other general principle to be applied than the one resulting from the custom and usage of each individual nation as shown by their treaties and their general and time honored practice.
The well-known words of Bynkershoek might be very appropri- ately recalled in this connection when so many and divergent opin- ions and authorities have been recited: "The common law of nations," he says, "can only be learnt from reason and custom. I do not deny that authority may add weight to reason, but I prefer to seek it in a constant custom of concluding treaties in one sense or another and in examples that have occurred in one country or another." (Questiones Jure Publici, vol. 1, Cap. 3.)
It is to be borne in mind in this respect that the tribunal has been called upon to decide as the subject-matter of this controversy, the construction to be given to the fishery treaty of 1818 between Great Britain and the United States. And so it is that from the usage and the practice of Great Britain in this and other like fisheries and from treaties entered into by them with other nations as to fisheries, may be evolved the right interpretation to be given to the particular convention which has been submitted. In this connection the following treaties may be recited :
Treaty between Great Britain and France. 2nd August, 1839. It reads as follows :
Article 9. The subjects of Her Britannic Majesty shall enjoy the exclusive right of fishery within the distance of 3 miles from low water mark along the whole extent of the coasts of the British Islands.
It is agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two
THE NORTH ATLANTIC COAST FISHERIES CASE 201
countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland.
Article 10. It is agreed and understood, that the miles mentioned in the present convention are geographical miles, whereof 60 make a degree of latitude.
(Hertslett's Treaties and Conventions, vol. v, p. 89.)
Regulations between Great Britain and France. 24th May, 1843.
Art. 2. The limits, within which the general right of fishery is exclusively reserved to the subjects of the two kingdoms respec- tively, are fixed (with the exception of those in Granville Bay) at 3 miles distance from low water mark.
With respect to bays, the mouths of which do not exceed ten miles in width, the 3-mile distance is measured from a straight line drawn from headland to headland.
Art. 3. The miles mentioned in the present regulations are geo- graphical miles, of which 60 make a degree of latitude.
(Hertslett, vol. vi, p. 416.)
Treaty between Great Britain and France. November 11, 1867.
Art. 1. British fishermen shall enjoy the exclusive right of fishery within the distance of 3 miles from low water mark, along the whole extent of the coasts of the British Islands.
The distance of 3 miles fixed as the general limit for the ex- clusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width be measured from a straight line drawn from headland to headland.
The miles mentioned in the present convention are geographical miles whereof 60 make a degree of latitude.
(Hertslett's Treaties, vol. xii, p. 1126, British Case App., p. 38.)
Great Britain and North German Confederation. British notice to fishermen by the Board of Trade. Board of Trade, November, 1868.
Her Majesty's Government and the North German Confederation having come to an agreement respecting the regulations to be ob-
202 THE HAGUE COURT REPORTS
served by British fishermen fishing off the coasts of the North Ger- man Confederation, the following notice is issued for the guidance and warning of British fishermen :
1. The exclusive fishery limits of the German Empire are desig- nated by the Imperial Government as follows : that tract of the sea which extends to a distance of 3 sea miles from the extremest limits which the ebb leaves dry of the German North Sea coast of the German islands or flats lying before it, as well as those bays and incurvations of the coast which are ten sea miles or less in breadth reckoned from the extremest points of the land and the flats, must be. considered as under the territorial sovereignty of North Ger- many.
(Hertslett's Treaties, vol. xiv, p. 1055.)
Great Britain and German Empire. British Board of Trade, December, 1874.
(Same recital referring to an arrangement entered into between Her Britannic Majesty and the German Government.)
Then the same articles follow with the alteration of the words "German Empire" for "North Germany."
(Hertslett, vol. xiv, p. 1058.)
Treaty between Great Britain, Belgium, Denmark, France, Ger- many and the Netherlands for regulating the police of the North Sea fisheries. May 6, 1882.
2. Les pecheurs nationaux jouiront du droit exclusif de peche dans le rayon de 3 milles, a partir de la laisse de basse mer, le long de toute Petendue des cotes de leurs pays respectifs, ainsi que des iles et des banes qui en dependent.
Pour les baies le rayon de 3 milles sera mesure a partir d'une ligne droite, tiree, en travers de la baie, dans la partie la plus rapprochee de 1'entree, au premier point ou Touverture n'excedera pas 10 milles.
(Hertslett, vol. xv, p. 794.)
British Order in Council, October 23rd, 1877. Prescribes the obligation of not concealing or effacing numbers or marks on boats, employed in fishing or dredging for purposes
THE NORTH ATLANTIC COAST FISHERIES CASE 203
of sale on the coasts of England, Wales, Scotland and the Islands of Guernsey, Jersey, Alderney, Sark and Man, and not going out- side ;
(a) The distance of 3 miles from low water mark along the whole extent of the said coasts;
(b) In cases of bays less than 10 miles wide the line joining the headlands of said bays.
(Hertslett, vol. xiv, p. 1032.)
To this list may be added the unratified treaty of 1888 between Great Britain and the United States which is so familiar to the tri- bunal. Such unratified treaty contains an authoritative interpretation of the Convention of October 20th, 1818, sub-judice: "The three marine miles mentioned in Article 1 of the Convention of October 20th, 1818, shall be measured seaward from low-water mark; but at every bay, creek or harbor, not otherwise specifically provided for in this treaty, such three marine miles shall be measured seaward from a straight line drawn across the bay, creek or harbor, in the part nearest the entrance at the first point where the width does not exceed ten marine miles," which is recognizing the exceptional bays as aforesaid and laying the rule for the general and common bays.
It has been suggested that the treaty of 1818 ought not to be studied as hereabove in the light of any treaties of a later date, but rather be referred to such British international conventions as pre- ceded it and clearly illustrate, according to this view, what were, at the time, the principles maintained by Great Britain as to their sovereignty over the sea and over the coast and the adjacent terri- torial waters. In this connection the treaties of 1686 and 1713 with France and of 1763 with France and Spain have been recited and offered as examples also of exclusion of nations by agreement from fishery rights on the high seas. I cannot partake of such a view. The treaties of 1686, 1713 and 1763 can hardly be under- stood with respect to this, otherwise than as examples of the wild, obsolete claims over the common ocean which all nations have of old abandoned with the progress of an enlightened civilization. And if certain nations accepted long ago to be excluded by convention from fishing on what is to-day considered a common sea, it is pre- cisely because it was then understood that such tracts of water, now
204 THE HAGUE COURT REPORTS
free and open to all, were the exclusive property of a particular power, who, being the owners, admitted or excluded others from their use. The treaty of 1818 is in the meantime one of the few which mark an era in the diplomacy of the world. As a matter of fact it is the very first which commuted the rule of the cannon-shot into the three marine miles of coastal jurisdiction. And it really would appear unjustified to explain such historic document, by referring it to international agreements of a hundred and two hun- dred years before when the doctrine of Selden's Mare Clausum was at its height and when the coastal waters were fixed at such dis- tances as sixty miles, or a hundred miles, or two days' journey from the shore and the like. It seems very appropriate, on the contrary, to explain the meaning of the treaty of 1818 by comparing it with those which immediately followed and established the same limit of coastal jurisdiction. As a general rule a treaty of a former date may be very safely construed by referring it to the provisions of like treaties made by the same nation on the same matter at a later time. Much more so when, as occurs in the present case, the later conventions, with no exception, starting from the same premise of the three miles coastal jurisdiction arrive always to an uniform policy and line of action in what refers to bays. As a matter of fact all authorities approach and connect the modern fishery treaties of Great Britain and refer them to the treaty of 1818. The second edition of Kluber, for instance, quotes in the same sentence the treaties of October 20th, 1818, and August 2, 1839, as fixing a dis- tance of three miles from low water mark for coastal jurisdiction. And Fiori, the well-known Italian jurist, referring to the same marine miles of coastal jurisdiction, says: "This rule recognized as early as the treaty of 1818 between the United States and Great Britain, and that betwen Great Britain and France in 1839, has again been admitted in the treaty of 1867." (Nouveau Droit Inter- national Public, Paris, 1885, section 803.)
This is only a recognition of the permanency and the continuity of States. The treaty of 1818 is not a separate fact unconnected with the later policy of Great Britain. Its negotiators were not par- ties to such international convention and their powers disappeared as soon as they signed the document on behalf of their countries. The parties to the treaty of 1818 were the United States and Great
THE NORTH ATLANTIC COAST FISHERIES CASE 205
Britain, and what Great Britain meant in 1818 about bays and fisheries, when they for the first time fixed a marginal jurisdiction of three miles, can be very well explained by what Great Britain, the same permanent political entity, understood in 1839, 1843, 1867, 1874, 1878 and 1882, when fixing the very same zone of territorial waters. That a bay in Europe should be considered as different from a bay in America and subject to other principles of inter- national law can not be admitted in the face of it. What the prac- tice of Great Britain has been outside the treaties is very well known to the tribunal, and the examples might be multiplied of the cases in which that nation has ordered its subordinates to apply to the bays on these fisheries the ten mile entrance rule or the six miles according to the occasion. It has been repeatedly said that such have been only relaxations of the strict right, assented to by Great Britain in order to avoid friction on certain special occasions. That may be. But it may also be asserted that such relaxations have been very many and that the constant, uniform, never contradicted, prac- tice of concluding fishery treaties from 1839 down to the present day, in all of which the ten miles entrance bays are recognized, is the clear sign of a policy. This policy has but very lately found a most public, solemn and unequivocal expression. "On a question asked in Parliament on the 21st of February, 1907," says Pitt Cobbett, a distinguished English writer, with respect to the Moray Firth Case, "it was stated that, according to the view of the For- eign Office, the Admiralty, the Colonial Office, the Board of Trade and the Board of Agriculture and Fisheries, the term 'territorial waters' was deemed to include waters extending from the coast line of any part of the territory of a State to three miles from the low-water mark of such coast line and the waters of all bays, the entrance to which is not more than six miles, and of which the entire land boundary forms part of the territory of the same state." (Pitt Cobbett Cases and Opinions on International Law, vol. 1, p. 143.)
Is there a contradiction between these six miles and the ten miles of the treaties just referred to ? Not at all. The six miles are the consequence of the three miles marginal belt of territorial waters in their coincidence from both sides at the inlets of the coast and the ten miles far from being an arbitrary measure are simply an ex-
206 THE HAGUE COURT REPORTS
tension, a margin given for convenience to the strict six miles with fishery purposes. Where the miles represent sixty to a degree in latitude the ten miles are besides the sixth part of the same degree. The American Government in reply to the observations made to Secretary Bayard's memorandum of 1888, said very precisely: "The width of ten miles was proposed not only because it had been followed in conventions between many other Powers, but also be- cause it was deemed reasonable and just in the present case; this Government recognizing the fact that while it might have claimed a width of six miles as a basis of settlement, fishing within bays and harbors only slightly wider would be confined to areas so nar- row as to render it practically valueless and almost necessarily ex- pose the fishermen to constant danger of carrying their operations into forbidden waters." (British Case Appendix, page 416.) And Professor John Bassett Moore, a recognized authority on interna- tional law, in a communication addressed to the Institute of Interna- tional Law, said very forcibly : "Since you observe that there does not appear to be any convincing reason to prefer the ten mile line in such a case to that of double three miles, I may say that there have been supposed to exist reasons both of convenience and of safety. The ten-mile line has been adopted in the cases referred to as a practical rule. The transgression of an encroachment upon territorial waters by fishing vessels is generally a grave offense, in- volving in many instances the forfeiture of the offending vessel, and it is obvious that the narrower the space in which it is permissi- ble to fish the more likely the offense is to be committed. In order, therefore, that fishing may be practicable and safe and not con- stantly attended with the risk of violating territorial waters, it has been thought to be expedient not to allow it where the extent of free waters between the three miles drawn on each side of the bay is less than four miles. This is the reason of the ten-mile line. Its inten- tion is not to hamper or restrict the right to fish, but to render its exercise practicable and safe. When fishermen fall in with a shoal of fish, the impulse to follow it is so strong as to make the possi- bilities of transgression very serious within narrow limits of free waters. Hence it has been deemed wiser to exclude them from space less than four miles each way from the forbidden lines. In spaces less than this operations are not only hazardous, but so circum-
THE NORTH ATLANTIC COAST FISHERIES CASE 207
scribed as to render them of little practical value." (Annuaire de I'Institut de Droit International, 1894, p. 146.)
So the use of the ten mile bays so constantly put into practice by Great Britain in its fishery treaties has its root and connection with the marginal belt of three miles for the territorial waters. So much so that the tribunal having decided not to adjudicate in this case the ten miles entrance to the bays of the treaty of 1818, this will be the only one exception in which the ten miles of the bays do not follow as a consequence the strip of three miles of territorial waters, the historical bays and estuaries always excepted.
And it is for that reason that an usage so firmly and for so long a time established ought, in my opinion, be applied to the construc- tion of the treaty under consideration, much more so, when custom, one of the recognized sources of law, international as well as muni- cipal, is supported in this case by reason and by the acquiescence and the practice of many nations.
The tribunal has decided that: "In case of bays the 3 miles (of the treaty) are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configura- tion characteristic of a bay. At all other places the three miles are to be measured following the sinuosities of the coast." But no rule is laid out or general principle evolved for the parties to know what the nature of such configuration is or by what methods the points should be ascertained from which the bay should lose the characteristics of such. There lies the whole contention and the whole difficulty, not satisfactorily solved, to my mind, by simply recommending, without the scope of the award and as a system of procedure for resolving future contestations under Article 4 of the treaty of arbitration, a series of lines, which practical as they may be supposed to be, can not be adopted by the parties without con- cluding a new treaty.
These are the reasons for my dissent, which I much regret, on Question 5.
Done at The Hague, September 7th, 1910
Luis M. DRAGO
208 THE HAGUE COURT REPORTS
ADDITIONAL DOCUMENTS
Modus vivendi between the United States and Great Britain in regard to inshore fisheries on the treaty coast of Newfoundland — Agree- ment effected by exchange of notes at London, October 6/8, 1906 l
AMERICAN EMBASSY, London, October 6, 1906.
SIR : I am authorized by my Government to ratify a modus vivendi in regard to the Newfoundland fishery question on the basis of the Foreign Office memorandum, dated the 25th of September, 1906, in which you accept the arrangement set out in my memorandum of the 12th of September and consent accordingly to the use of purse seines by American fishermen during the ensuing season, subject, of course, to due regard being paid in the use of such implements to other modes of fishery, which, as you state, is only intended to secure that there shall be the same spirit of give and take and of respect for common rights between the users of purse seines and the users of stationary nets as would be expected to exist if both sets of fishermen employed the same gear.
My Government understand by this that the use of purse seines by American fishermen is not to be interfered with, and that the shipment of Newfoundlanders by American fishermen outside the 3-mile limit is not to be made the basis of interference or to be penalized; at the same time they are glad to assure His Majesty's Government, should such shipments be found necessary, that they will be made far enough from the exact 3-mile limit to avoid any reasonable doubt.
On the other hand, it is also understood that our fishermen are to be advised by my Government, and to agree, not to fish on Sunday.
It is further understood that His Majesty's Government will not bring into force the Newfoundland foreign fishing vessels Act of 1906 which imposes on American fishing vessels certain restrictions in addition to those imposed by the Act of 1905, and also that the pro- visions of the first part of section 1 of the Act of 1905, as to boarding and bringing into port, and also the whole of section 3 of the same Act, will not be regarded as applying to American fishing vessels.
It also being understood that our fishermen will gladly pay light dues if they are not deprived of their rights to fish, and that our fishermen are not unwilling to comply with the provisions of the
^Foreign Relations of the United States, 1906, pt. 1, p. 701.
THE NORTH ATLANTIC COAST FISHERIES CASE 209
colonial customs law as to reporting at a custom-house when physically possible to do so.
I need not add that my Government are most anxious that the pro- visions of the modus vivendi should be made effective at the earliest possible moment. I am glad to be assured by you that this note will be considered as sufficient ratification of the modus vivendi on the part of my Government.
I have the honor to be, with the highest consideration, sir, Your most obedient, humble servant,
WHITELAW REID The Right Honorable SIR EDWARD GREY, BT.,
Etc., etc., etc.
FOREIGN OFFICE, October 8, 1906.
YOUR EXCELLENCY: I have received with satisfaction the note of the 6th instant in which your Excellency states that you have been authorized by your Government to ratify a modus vivendi in regard to the Newfoundland fishery question on the basis of the memorandum which I had the honor to communicate to you on the 25th ultimo, and I am glad to assure your Excellency that the note in question will be considered by His Majesty's Government as a sufficient ratification of that arrangement on the part of the United States Government.
His Majesty's Government fully share the desire of your Govern- ment that the provisions of the modus vivendi should be made effective at the earliest moment possible, and the necessary instructions for its observance were accordingly sent to the Government of Newfound- land immediately on receipt of your Excellency's communication.
I have the honor to be, with the highest consideration, your Excel- lency's most obedient, humble servant,
(In the absence of the Secretary of State)
E. GORST His Excellency the Honorable WHITELAW REID,
Etc., etc., etc.
Memorandum of the American Embassy of September 12, /pod1
My Government hears with the greatest concern and regret that in the opinion of His Majesty's Government there is so wide a diver- gence of views with regard to the Newfoundland fisheries that an immediate settlement is hopeless.
But it is much gratified with His Majesty's Government's desire
^Foreign Relations of the United States, 1906, pt 1, p. 702.
210 THE HAGUE COURT REPORTS
to reach a modus vivendi for this season, and appreciates the readi- ness to waive the foreign fishing vessels Act of 1906. This and other restrictive legislation had compelled our fishermen to use purse seines or abandon their treaty rights.
My Government sees in the offer not to apply section 3, Act of 1905, and that part of section 1 relating to boarding fishing vessels and bringing them into port fresh proof of a cordial disposition not to press unduly this kind of regulation.
Our fishermen will also gladly pay light dues, if not hindered in their right to fish. They are not unwilling, either, to comply with the regulation to report at custom-houses, when possible. It is sometimes physically impossible, however, to break through the ice for that purpose.
Most unfortunately the remaining proposals, those as to purse seining and Sunday fishing, present very grave difficulties.
We appreciate perfectly the desire of His Majesty's Government to prevent Sunday fishing. But if both this and purse seine fishing are taken away, as things stand there might be no opportunity for profit- able fishing left under our treaty rights. We are convinced that purse seines are no more injurious to the common fishery than the gill nets commonly used — are not, in fact, so destructive and do not tend to change the migratory course of the herring as gill nets do, through the death of a large percentage of the catch and consequent pollution of the water.
The small amount of purse seining this season could not, of course, materially affect the common fishery anyway. Besides many of our fishermen have already sailed, with purse seines as usual, and the others are already provided with them. This use of the purse seine was not the free choice of our fishermen. They have been driven to it by local regulations, and the continued use of it at this late date this year seems vital.
But we will renounce Sunday fishing for this season if His Maj- esty's Government will consent to the use of purse seines, and we can not too strongly urge an acceptance of this solution.
AMERICAN EMBASSY, London, September 12, 1906.
Memorandum of the British Foreign Office of September 25, /pod1
His Majesty's Government have considered, after consultation with the Government of Newfoundland, the proposals put forward in the
^Foreign Relations of the United States, 1906, pt. 1, p. 703.
THE NORTH ATLANTIC COAST FISHERIES CASE 211
memorandum communicated by the United States Ambassador on the 12th instant, respecting the suggested modus vivendi in regard to the Newfoundland fishery question.
They are glad to be able to state that they accept the arrangement set out in the above memorandum and consent accordingly to the use of purse seines by United States fishermen during the ensuing season, subject, of course, to due regard being paid, in the use of such imple- ments, to other modes of fishery.
His Majesty's Government trust that the United States Government will raise no objection to such a stipulation, which is only intended to secure that there shall be the same spirit of give and take and of respect of common rights between the users of purse seines and the users of stationary nets as would be expected to exist if both sets of fishermen employed the same gear.
They further hope that, in view of this temporary authorization of the purse seines, the United States Government will see their way to arranging that the practice of engaging Newfoundland fishermen just outside the three-mile limit, which, to some extent, prevailed last year, should not be resorted to this year.
An arrangement to this effect would save both His Majesty's Gov- ernment and the Newfoundland Government from embarrassment which, it is conceived, having regard to the circumstances in which the modus vivendi is being settled, the United States Government would not willingly impose upon them. Moreover, it is not in itself unrea- sonable, seeing that the unwillingness of the United States Govern- ment to forego the use of purse seines appears to be largely based upon the inability of their fishermen to engage local men to work the form of net recognized by the colonial fishery regulations.
The United States Government assured His Majesty's late Govern- ment in November last that they would not countenance a specified evasion of the Newfoundland foreign fishing vessels Act, 1905, and the proposed arrangement would appear to be in accordance with the spirit which prompted that assurance.
FOREIGN OFFICE, September 25, 1906.
214 THE HAGUE COURT REPORTS
Modus vivendi between the United States and Great Britain in re- gard to inshore fisheries on the treaty coast of Newfoundland — Agreement effected by exchange of notes signed at London, July 15/23. 1908*
FOREIGN OFFICE, July 15, 1908.
YOUR EXCELLENCY: On the 18th ultimo your Excellency proposed on behalf of the United States Government that, as arbitration in re- gard to the Newfoundland fisheries question could not be arranged before the forthcoming fishery season, the modus vivendi of last year should be renewed with the same elasticity as before for the par- ties concerned to make local arrangements satisfactory to both sides. I have the honor to inform your Excellency that the Newfoundland Government, having been consulted on the subject, have expressed the desire that the herring fishery during the ensuing season should be conducted on the same principles as in the season of 1907, and for- mally undertake to permit during this year the conduct of the herring fishery as last year.
As the arrangements for last year were admittedly satisfactory to all concerned in the fishing, His Majesty's Government hope that the United States Government will see their way to accept this formal assurance on the part of the Newfoundland Government as a satis- factory arrangement for the season of 1908. If this course be adopted it would seem unnecessary to enter into any further formal arrange- ments, seeing that the communication of this assurance to the United States Government and its acceptance by them would be tantamount to a modus vivendi.
I have the honor to be, with the highest consideration, your Excel- lency's most obedient, humble servant,
Louis MALLET (For SIR EDWARD GREY) His Excellency the Honorable WHITELAW REID, etc., etc., etc.
AMERICAN EMBASSY, London, July 23, 1908.
SIR: The reply, in your letter of July 15, 1908, to my proposal of June 18th, for a renewal of last year's modus vivendi for the ap- proaching Newfoundland fisheries season, with the same elasticity as before for local arrangements, has been duly considered.
I am gratified to learn that the Newfoundland Government was so well satisfied with the result of these arrangements under the modus
^Foreign Relations of the United States, 1908, p. 378.
THE NORTH ATLANTIC COAST FISHERIES CASE 215
vivendi for last year that it offers a formal undertaking that the American fishermen shall be permitted to conduct the herring fisheries this year in the same way.
It is proper to observe that our fishermen would have preferred last year, and would prefer now to work the fisheries with purse seines, as heretofore, as provided in the modus vivendi of 1906. But they yielded last year to the strong wishes of the Newfoundland Gov- ernment in this matter, and joined in the arrangement under the elastic clause at the close of the modus Vivendi of 1907 by which, with the approval of the British and American Governments, they gave up also other claims in return for certain concessions. I must reserve their right to these and to purse seines, as heretofore enjoyed, as not now abandoned, and therefore to be duly considered in the pending arbitra- tion before the Hague tribunal.
But with this reservation, and with the approval of my Government, I now have pleasure in accepting the offer that the herring fishery during the ensuing season shall be conducted on the same principles as in the season of 1907, and the formal undertaking against interfer- ence with this by the Newfoundland Government, as a substantial agreement on my proposal of June 18th.
We unite also with you in regarding this exchange of letters as con- stituting in itself a satisfactory agreement for the season of 1908, without the necessity for any further formal correspondence.
I am glad to add that Mr. Alexander, of the United States Fish Commission, will be sent again this year to the treaty shore, and that my Government feels sure that, through his influence, there will be general willingness to carry out the spirit of the understanding, and work on the lines of least resistance.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
WHITELAW REID The Right Honorable SIR EDWARD GREY, Bart., etc., etc., etc.
Correspondence of January 2^-March 4, /pop, Supplementary to the Agreement for Arbitration *
DEPARTMENT OF STATE, Washington, January 27, /pop.
EXCELLENCY: In order to place officially on record the understand- ing already arrived at by us in preparing the special agreement which
1MaIloy, Treaties, Conventions, etc., between the United States and Other Powers, vol. 1, p. 841. For the agreement for arbitration, see ante, p. 147.
216 THE HAGUE COURT REPORTS
we have signed to-day for the submission of questions relating to fish- eries on the north Atlantic coast under the general treaty of arbitra- tion concluded between the United States and Great Britain on the fourth day of April, 1908, I have the honor to declare on behalf of the Government of the United States that Question 5 of the series submitted, namely, "From where must be measured the 'three marine miles of any of the coasts, bays, creeks, or harbors1 referred to in the said article" is submitted in its present form with the agreed under- standing that no question as to the Bay of Fundy, considered as a whole apart from its bays or creeks, or as to innocent passage through the Gut of Canso is included in this question as one to be raised in the present arbitration; it being the intention of the parties that their respective views or contentions on either subject shall be in no wise prejudiced by anything in the present arbitration.
I have the honor to be, with the highest respect, your Excellency's most obedient servant,
ELIHU ROOT
His Excellency The Right Honorable JAMES BRYCE, O.M.,
Ambassador of Great Britain.
BRITISH EMBASSY, Washington, January 27, ipop.
SIR: I have the honor to acknowledge your note of to-day's date and in reply have to declare on behalf of His Majesty's Government, in order to place officially on record the understanding already arrived at by us in preparing the special agreement which we have signed to-day for the submission of questions relating to fisheries on the north Atlantic coast under the general treaty of arbitration concluded be- tween Great Britain and the United States on the 4th day of April, 1908, that Question 5 of the series submitted, namely, "From where must be measured the 'three marine miles of any of the coasts, bays, creeks or harbors' referred to in the said article" is submitted in its present form with the agreed understanding that no question as to the Bay of Fundy, considered as a whole apart from its bays and creeks, or as to innocent passage through the Gut of Canso is included in this question as one to be raised in the present arbitration; it being the intention of the parties that their respective views or contentions on either subject shall be in no wise prejudiced by anything in the present arbitration.
THE NORTH ATLANTIC COAST FISHERIES CASE 217
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
JAMES BRYCE The Honorable ELIHU ROOT,
Etc., etc., etc., Secretary of State.
DEPARTMENT OF STATE, Washington, February 21, /pop.
EXCELLENCY: I have the honor to inform you that the Senate, by its resolution of the 18th instant, gave its advice and consent to the ratification of the special agreement between the United States and Great Britain, signed on January 27, 1909, for the submission to the Permanent Court of Arbitration at The Hague of questions relating to fisheries on the north Atlantic coast.
In giving this advice and consent to the ratification of the special agreement, and as a part of the act of ratification, the Senate states in the resolution its understanding — "that it is agreed by the United States and Great Britain that Question 5 of the series submitted, name- \y, 'from where must be measured the three marine miles of any of the coasts, bays, creeks, or harbors referred to in said article?' does not include any question as to the Bay of Fundy, considered as a whole apart from its bays or creeks, or as to innocent passage through the Gut of Canso, and that the respective views or contentions of the United States and Great Britain on either subject shall be in no wise prejudiced by anything in the present arbitration, and that this agree- ment on the part of the United States will be mentioned in the ratifi- cation of the special agreement and will, in effect, form part of this special agreement."
In thus formally confirming what I stated to you orally, I have the honor to express the hope that you will in like manner formally con- firm the assent of His Majesty's Government to this understanding which you heretofore stated to me orally, and that you will be pre- pared at an early day to exchange the notes confirming the special agreement as provided for therein and in the general arbitration con- vention of June 5, 1908.
I have the honor to be, with the highest consideration, your Excel- lency's most obedient servant,
ROBERT BACON His Excellency The Right Honorable
JAMES BRYCE, O.M., Ambassador of Great Britain.
218 THE HAGUE COURT REPORTS
BRITISH EMBASSY, Washington, March 4, 1909.
SIR: I have the honor to acknowledge the receipt of your note in- forming me that the Senate of the United States has approved the special agreement for the reference to arbitration of the questions re- lating to the fisheries on the north Atlantic coast and of the terms of the resolution in which that approval is given.
It is now my duty to inform you that the Government of His Britan- nic Majesty confirms the special agreement aforesaid and in so doing confirms also the understanding arrived at by us that Question 5 of the series of questions submitted for arbitration, namely, from where must be measured the "three marine miles of any of the coasts, bays, creeks, or harbors" referred to in the said article, is submitted in its present form with the agreed understanding that no question as to the Bay of Fundy considered as a whole apart from its bays or creeks, or as to innocent passage through the Gut of Canso, is included in this question as one to be raised in the present arbitration, it being the intention of the parties that their respective views or contentions on either subject shall be in nowise prejudiced by anything in the present arbitration.
This understanding is that which was embodied in notes exchanged between your predecessor and myself on January 27th, and is that expressed in the above-mentioned resolution of the Senate of the United States.
I have the honor to be, with the highest respect, sir, your most obedient, humble servant,
JAMES BRYCE The Honorable ROBERT BACON,
Secretary of State.
DEPARTMENT OF STATE, Washington, March 4, /pop.
EXCELLENCY : I have the honor to acknowledge the receipt of your note of the 4th instant in which you confirm the understanding in the matter of the special agreement submitting to arbitration the differ- ences between the Governments of the United States and Great Britain concerning the north Atlantic fisheries, as expressed in the resolution of the Senate of February 18, 1909, and as previously agreed upon by the interchange of notes with my predecessor of January 27, 1909.
THE NORTH ATLANTIC COAST FISHERIES CASE 219
I therefore have the honor to inform you that this Government con- siders the special agreement as in full force and effect from and after the 4th day of March, 1909.
I have the honor to be, with the highest consideration, your Excel- lency's most obedient servant,
ROBERT BACON His Excellency The Right Honorable
JAMES BRYCE, O.M., Ambassador of Great Britain.
Resolution of the United States Senate concerning Newfoundland
Fisheries*
February 18, /pop.
Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of a special agreement between the United States and Great Britain for the sub- mission to the Permanent Court of Arbitration at The Hague of questions relating to fisheries on the north Atlantic coast, signed on the 27th day of January, 1909.
In giving this advice and consent to the ratification of the said spe- cial agreement, and as a part of the act of ratification, the Senate understands that it is agreed by the United States and Great Britain that Question 5 of the series submitted, namely, "from where must be measured the 'three marine miles of any of the coasts, bays, creeks, or harbors' referred to in the said article," does not include any question as to the Bay of Fundy, considered as a whole apart from its bays, or creeks, or as to innocent passage through the Gut of Canso, and that the respective views or contentions of the United States and Great Britain on either subject shall be in nowise preju- diced by anything in the present arbitration, and that this agreement on the part of the United States will be mentioned in the ratification of the special agreement and will, in effect, form part of this special agreement.
1Malloy, Treaties, Conventions, etc., between the United States and Other Powers, vol. 1, p. 843.
220 THE HAGUE COURT REPORTS
Modus vivendi between the United States and Great Britain in re- gard to inshore fisheries on the treaty coast of Newfoundland — Agreement effected by exchange of notes signed at London, July 22 / September 8, /pop1
AMERICAN EMBASSY, London, July 22, /pop.
Inasmuch as under the provisions of the special agreement, dated January 27, 1909, between the United States and Great Britain for the submission to arbitration of certain questions arising with respect to the north Atlantic coast fisheries, the decision of the tribunal on such questions will not be rendered before the summer of 1910, and inasmuch as the modus vivendi entered into with Great Britain last July with respect to the Newfoundland fisheries does not in terms extend beyond the season of 1908, my Government thinks it desirable that the modus of last year should be renewed for the coming season, and, if possible, until the termination of the arbitration proceedings for the settlement of these questions.
I am therefore instructed to propose such a renewal to His Maj- esty's Government, the understanding on both sides originally having been, as you may remember, that the modus was entered into pending arbitration.
I have the honor to bet with the highest consideration, sir, your mo.ct obedient, humble servant,
WHITELAW REID The Right Honorable SIR EDWARD GREY, Bt., etc., etc., etc.
FOREIGN OFFICE, September 8, ipop.
SIR: In reply to Mr. Whitelaw Reid's note of July 22 last I have the honor to state that His Majesty's Government agree to the re- newal of the modus vivendi of 1908 for the regulation of the New- foundland fisheries, until the termination of the arbitration proceed- ings before the Hague tribunal for the settlement of the Atlantic fisheries questions.
His Majesty's Government suggest that Mr. Whitelaw Reid's note of July 22 and my present reply should be regarded as constituting a sufficient ratification of the above understanding without the necessity for embodying it in a more formal document.
I have the honor to be, with high consideration, sir, your most obedient, humble servant,
E. GREY J. R. CARTER, ESQ., etc., etc., etc.
^Foreign Relations of the United States, 1909, p. 283.
THE NORTH ATLANTIC COAST FISHERIES CASE 221
Agreement between the United States and Great Britain adopting with certain modifications the rules and method of procedure rec- ommended in the award of September 7, 1910, of the north Atlan- tic coast fisheries arbitration. — Signed at Washington, July 20,
The United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Do- minions beyond the Seas, Emperor of India, being desirous of con- cluding an agreement regarding the exercise of the liberties referred to in Article 1 of the treaty of October 20, 1818, have for this pur- pose named as their plenipotentiaries:
The President of the United States of America:
Chandler P. Anderson, Counselor for the Department of State of the United States;
His Britannic Majesty:
Alfred Mitchell Innes, Charge df Affaires of His Majesty's Embassy at Washington;
Who, having communicated to each other their respective full powers, which were found to be in due and proper form, have agreed to and concluded the following articles:
ARTICLE 1
Whereas the award of the Hague tribunal of September 7, 1910, recommended for the consideration of the parties certain rules and a method of procedure under which all questions which may arise in the future regarding the exercise of the liberties referred to in Article 1 of the treaty of October 20, 1818, may be determined in accordance with the principles laid down in the award, and the par- ties having agreed to make certain modifications therein, the rules and method of procedure so modified are hereby accepted by the parties in the following form:
1. All future municipal laws, ordinances, or rules for the regula- tion of the fisheries by Great Britain, Canada, or Newfoundland in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means, and implements used in the taking of fish or in carrying on fishing operations; (3) any other regulations of a similar character; and all alterations or amend- ments of such laws, ordinances, or rules shall be promulgated and come into operation within the first fifteen days of November in each year; provided, however, in so far as any such law, ordinance, or rule
JC7. S. Statutes at Large, vol. 37, pt. 2, p. 1634.
222 THE HAGUE COURT REPORTS
shall apply to a fishery conducted between the 1st day of November and the 1st day of February, the same shall be promulgated at least six months before the 1st day of November in each year.
Such laws, ordinances, or rules by Great Britain shall be promul- gated by publication in the London Gazette, by Canada in the Canada Gazette, and by Newfoundland in the Newfoundland Gazette.
After the expiration of ten years from the date of this agreement, and so on at intervals of ten years thereafter, either party may pro- pose to the other that the dates fixed for promulgation be revised in consequence of the varying conditions due to changes in the habits of the fish or other natural causes; and if there shall be a difference of opinion as to whether the conditions have so varied as to render a revision desirable, such difference shall be referred for decision to a commission possessing expert knowledge, such as the permanent mixed fishery commission hereinafter mentioned.
2. If the Government of the United States considers any such laws or regulations inconsistent with the treaty of 1818, it is entitled so to notify the Government of Great Britain within forty-five days after the publication above referred to, and may require that the same be submitted to and their reasonableness, within the meaning of the award, be determined by the permanent mixed fishery commission constituted as hereinafter provided.
3. Any law or regulation not so notified within the said period of forty-five days, or which, having been so notified, has been declared reasonable and consistent with the treaty of 1818 (as interpreted by the said award) by the permanent mixed fishery commission, shall be held to be reasonable within the meaning of the award; but if de- clared by the said commission to be unreasonable and inconsistent with the treaty of 1818, it shall not be applicable to the inhabitants of the United States exercising their fishing liberties under the treaty of 1818.
4. Permanent mixed fishery commissions for Canada and Newfound- land, respectively, shall be established for the decision of such ques- tions as to the reasonableness of future regulations, as contemplated by Article 4 of the special agreement of January 27, 1909. These commissions shall consist of an expert national, appointed by each party for five years \ the third member shall not be a national of either party. He shall be nominated for five years by agreement of the parties, or, failing such agreement, within two months from the date, when either of the parties to this agreement shall call upon the other
THE NORTH ATLANTIC COAST FISHERIES CASE 223
to agree upon such third member, he shall be nominated by Her Majesty the Queen of the Netherlands.
5. The two national members shall be summoned by the Govern- ment of Great Britain, and shall convene within thirty days from the date of notification by the Government of the United States. These two members having failed to agree on any or all of the questions sub- mitted within thirty days after they have convened, or having before the expiration of that period notified the Government of Great Britain that they are unable to agree, the full commission, under the presidency of the umpire, is to be summoned by the Government of Great Britain, and shall convene within thirty days thereafter to de- cide all questions upon which the two national members had dis- agreed. The commission must deliver its decision, if the two Gov- ernments do not agree otherwise, within forty-five days after it has convened. The umpire shall conduct the procedure in accordance with that provided in Chapter IV of the Convention for the pacific settlement of international disputes, of October 18, 1907, except in so far as herein otherwise provided.
6. The form of convocation of the commission, including the terms of reference of the question at issue, shall be as follows :
The provision hereinafter fully set forth of an act dated
published in the Gazette, has been notified to the Govern- ment of Great Britain by the Government of the United States
under date of , as provided by the agreement entered into
on July 20, 1912, pursuant to the award of the Hague tribunal of September 7, 1910.
Pursuant to the provisions of that agreement the Government of Great Britain hereby summons the permanent mixed fishery commission for
/ _ _ Canada ) composed of commissioner for the
\ Newfoundland ) *
United States of America, and of commissioner for
\ Canada ^ * !• who shall meet at Halifax, Nova Scotia, with ( Newfoundland J
power to hold subsequent meetings at such other place or places as they may determine, and render a decision within thirty days as to whether the provision so notified is reasonable and consistent with the treaty of 1818, as interpreted by the award of the Hague tribunal of September 7, 1910, and if not, in what respect it is unreasonable and inconsistent therewith.
Failing an agreement on this question within thirty days, the commission shall so notify the Government of Great Britain in
224 THE HAGUE COURT REPORTS
order that the further action required by that award shall be taken for the decision of the above question.
The provision is as follows
7. The unanimous decision of the two national commissioners, or the majority decision of the umpire and one commissioner, shall be final and binding.
8. Any difference in regard to the regulations specified in Protocol XXX of the arbitration proceedings, which shall not have been dis- posed of by diplomatic methods, shall be referred not to the commis- sion of expert specialists mentioned in the award but to the permanent mixed fishery commissions, to be constituted as hereinbefore provided, in the same manner as a difference in regard to future regulations would be so referred.
ARTICLE 2
And whereas the tribunal of arbitration in its award decided that —
In case of bays the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the three marine miles are to be measured following the sinuosities of the coast.
And whereas the tribunal made certain recommendations for the determination of the limits of the bays enumerated in the award;
Now, therefore, it is agreed that the recommendations, in so far as the same relate to bays contiguous to the territory of the Dominion of Canada, to which Question 5 of the special agreement is applicable, are hereby adopted, to wit:
In every bay not hereinafter specifically provided for, the limits of exclusion shall be drawn three miles seaward from a straight line across the bay in the part nearest the entrance at the first point where the width does not exceed ten miles.
For the Baie des Chaleurs the limits of exclusion shall be drawn from the line from the light at Birch Point on Miscou Island to Mac- quereau Point light ; for the Bay of Miramichi, the line from the light at Point Escuminac to the light on the eastern point of Tabisintac Gully; for Egmont Bay, in Prince Edward Island, the line from the light of Cape Egmont to the light of West Point ; and off St. Ann's Bay, in the Province of Nova Scotia, the line from the light at Point Anconi to the nearest point on the opposite shore of the mainland.
For or near the following bays the limits of exclusion shall be three marine miles seawards from the following lines, namely:
THE NORTH ATLANTIC COAST FISHERIES CASE 225
For or near Barrington Bay, in Nova Scotia, the line from the light on Stoddard Island to the light on the south point of Cape Sable, thence to the light at Baccaro Point; at Chedabucto and St. Peter's Bays, the line from Cranberry Island light to Green Island light, thence to Point Rouge; for Mira Bay, the line from the light on the east point of Scatary Island to the northeasterly point of Cape Morien.
Long Island and Bryer Island, on St. Mary's Bay, in Nova Scotia, shall, for the purpose of delimitation, be taken as the coasts of such bays.
It is understood that the award does not cover Hudson Bay.
ARTICLE 3
It is further agreed that the delimitation of all or any of the bays on the coast of Newfoundland, whether mentioned in the recom- mendations or not, does not require consideration at present.
ARTICLE 4
The present agreement shall be ratified by the President of the United States, by and with the advice and consent of the Senate there- of, and by His Britannic Majesty, and the ratifications shall be ex- changed in Washington as soon as practicable.
In faith whereof the respective plenipotentiaries have signed this agreement in duplicate and have hereunto affixed their seals.
Done at Washington on the 20th day of July, one thousand nine hundred and twelve.
CHANDLER P. ANDERSON [SEAL] ALFRED MITCHELL INNES [SEAL]
THE ORINOCO STEAMSHIP COMPANY
CASE
between
THE UNITED STATES and VENEZUELA Decided October 25, 1910
Syllabus
This claim originated in a concession from Venezuela to one Ellis Grell, granted on January 17, 1894,1 for the exclusive right to navigate the Orinoco River in steam vessels between Trinidad and Ciudad Boli- var. The contract embodying the concession contained the so-called Calvo clause, which provided that "questions and controversies which may arise with regard to the interpretation or execution of this con- tract shall be resolved by the tribunals of the Republic in accordance with its laws, and shall not in any case give occasion for international reclamations."
By subsequent assignment the Grell concession came into possession of the Orinoco Shipping and Trading Company, a British corporation, the majority of the stock and bonds of which was held by American citizens. The Government of Venezuela became indebted to this com- pany for approximately half a million dollars for services rendered and damages sustained. An adjustment was effected on May 10, 1900, by which the concession was extended for a period of six years and the Government agreed to pay the company 100,000 bolivars ($19,200) in cash and a second sum of the same amount at a later date. The company, on its part, acknowledged as settled all its claims against the Government. The contract of settlement also contained the so-called Calvo clause. The first payment of 100,000 bolivars was duly made, but the second was not.
On October 5, 1900, Venezuela opened the navigation of the Orinoco River to the commerce of all nations, thus destroying the monopoly claimed by the company as assignee of the Grell concession. This was done by repealing a decree promulgated on July 1, 18932 a few months before the original concession was granted, which closed the Orinoco to foreign trade. On December 14, 1901, the Venezuelan Government further cancelled the extension of the concession granted in accordance with the contract of settlement of May 10, 1900. The company's efforts to obtain relief from the Government of Venezuela being unsuccessful, the matter was brought to the attention of the American and British Governments. Later, the American stock-
*Pt>st, p. 258. *Post, p. 253.
THE ORINOCO STEAMSHIP COMPANY CASE 227
holders of the British company organized an American corporation known as the Orinoco Steamship Company, which took over the busi- ness, assets and liabilities of the former company. The claims of the corporation taken over from the company for the payment overdue under the agreement of May 10, 1900, for damages arising from the annulment of the exclusive concession, for services rendered, imposts illegally exacted, for the use and detention of and damages to vessels, loss of earnings and counsel fees, amounting to approximately $1,400,000, were presented to the United States and Venezuelan claims commission under the protocol of February 17, 1903.1 The commis- sion assumed jurisdiction of the claims under the wording of the protocol, which included "all claims owned by citizens of the United States," and the umpire, Dr. Barge, on February 22, 1904,2 made an award in favor of the claimants, amounting to approximately $28,000, covering the detention and use of steamers, goods delivered to the Government and passages furnished it.
Although the protocol provided that the decision of the commission and of the umpire should be final and conclusive, the United States protested the award on the grounds that it disregarded the terms of the protocol and contained essential errors of law and fact such as invalidated it in accordance with the principles of international law.
After several years of negotiations about this and other claims, in the course of which diplomatic relations were severed, a protocol was signed on February 13, 1909,3 which provided for the submission of the case to arbitration in the following form :
The arbitral tribunal shall first decide whether the decision of um- pire Barge, in this case, in view of all the circumstances and under the principles of international law, is not void, and whether it must be considered so conclusive as to preclude a reexamination of the case on its merits. If the arbitral tribunal decides that said decision must be considered final, the case will be considered by the United States of America as closed; but on the other hand, if the arbitral tribunal decides that said decision of umpire Barge should not be considered as final, said tribunal shall then hear, examine and deter- mine the case and render its decision on the merits.4
The tribunal, composed of three members selected from the Perma- nent Court of Arbitration at The Hague, none of whom could be a citizen of either of the contracting countries, was constituted as fol- lows: Heinrich Lammasch of Austria, Auguste M. F. Beernaert of Belgium, and Gonzalo de Quesada of Cuba. Its sessions began Sep- tember 28 and ended October 19, 1910, the decision being rendered on October 25, 1910.
The tribunal held that, while on principle an arbitral decision should be accepted, respected and carried out without any reservation, in
, p. 74. *Post, p. 255. *Post, p. 235. *Post, p. 236.
228 THE HAGUE COURT REPORTS
this case the parties had admitted in the protocol of submission that excess of jurisdiction and essential error nullified an arbitral judg- ment, and called upon the tribunal to decide whether the judgment of umpire Barge was not void, and, if so, to reexamine the case on its merits. The tribunal further held that the nullity of one claim in an arbitral award embracing several independent claims does not nullify the others. The tribunal then proceeded to examine each item con- sidered by the former award and decided as follows :
The decision upon the claims based upon the annulment of the con- cession was not vitiated by excess of authority or essential error, and was therefore not subject to revision.
In view of the express provisions of the agreement of submission of February 17, 1903, that the umpire was to decide according to absolute equity and without regard to objections of a technical nature or the provisions of local legislation, umpire Barge exceeded his juris- diction in rejecting the claim for payment due under the contract of May 10, 1900, because of the failure of the claimants to appeal to the Venezuelan courts, in accordance with the Calvo clause of the con- tracts, and to notify the Government of the assignment of the claim, in accordance with local law. The claim was declared to be well founded and accordingly allowed.
The tribunal made the same holding with reference to claims for transportation of passengers and merchandise and for the retention and hire of steamers, which were disallowed by the former award because the claimants omitted to notify Venezuela of the assignment of them.
The balance of the former decision with reference to the remaining claims was held not subject to reexamination or revision, except that a portion of the amount claimed for counsel fees and expenses of litigation was allowed.
The claims allowed by the tribunal amounted to $64,412.59, in addition to the $28,224.93 allowed by the original decision, making a total recovery of $92,637.52, upon which interest was allowed at the rate of three per cent.
With the above exceptions, the decision of umpire Barge was held to remain in full force and effect.
AWARD OF THE TRIBUNAL
Award of the tribunal of arbitration constituted under an Agree- ment signed at Caracas, February 13, 1909, between the United States of America and tlie United States of Venezuela. — The Hague, October 25, ipio.1
By an agreement signed at Caracas the 13th of February, 1909,2
Official report, p. 64. For the original French text, see Appendix, p. 504. *Post, p. 235.
THE ORINOCO STEAMSHIP COMPANY CASE 229
the United States of America and of Venezuela have agreed to submit to a tribunal of arbitration, composed of three arbitrators, chosen from the Permanent Court of Arbitration, a claim of the United States of America against the United States of Venezuela; This agreement states :
The arbitral tribunal shall first decide whether the decision of umpire Barge,1 in this case, in view of all the circumstances and under the principles of international law, is not void, and whether it must be considered to be so conclusive as to preclude a reexamina- tion of the case on its merits. If the arbitral tribunal decides that said decision must be considered final, the case will be considered by the United States of America as closed; but on the other hand, if the arbitral tribunal decides that said decision of umpire Barge should not be considered as final, the said tribunal shall then heart examine and determine the case and render its decisions on its merits.*
In virtue of said agreement, the two Governments respectively have named as arbitrators the following members of the Permanent Court of Arbitration :
His Excellency Gonzalo de Quesada Envoy Extraordinary and Minister Plenipotentiary of Cuba at Berlin, etc. ;
His Excellency A. Beernaert, Minister of State, member of the Chamber of Representatives of Belgium, etc. ;
And the arbitrators so designated, in virtue of said agreement, have named as umpire:
Mr. H. Lammasch, professor in the University of Vienna, mem- ber of the Upper House of the Austrian Parliament, etc. ;
The cases, counter-cases and conclusions have been duly sub- mitted to the arbitrators and communicated to the parties;
The parties have both pleaded and replied, both having pleaded the merits of the case, as well as the previous question, and the dis- cussion was declared closed on October 19th, 1910;
Upon which the tribunal, after mature deliberation, pronounces as follows:
Whereas by the terms of an agreement dated February 17th,
*Postf p. 255. *Post, p. 236.
230 THE HAGUE COURT REPORTS
1903, 1 a mixed commission was charged with the decision of all claims owned (poseidas) by citizens of the United States of America against the Republic of Venezuela, which shall not have been settled by a diplomatic agreement or by arbitration between the two Gov- ernments and which shall have been presented by the United States of America ; an umpire, to be named by Her Majesty the Queen of the Netherlands, was eventually to give his final and conclusive decision (definitiva y concluyente) on any question upon which the commissioners might not have been able to agree ;
Whereas the umpire thus appointed, Mr. Barge, has pronounced on the said claims on the 22nd of February 1904 ;
Whereas it is assuredly in the interest of peace and the develop- ment of the institution of international arbitration, so essential to the well-being of nations, that on principle, such a decision be ac- cepted, respected and carried out by the parties without any reser- vation, as it is laid down in Article 81 of the Convention for the pacific settlement of international disputes of October 18th, 1907; and besides no jurisdiction whatever has been instituted for recon- sidering similar decisions;
But whereas in the present case, it having been argued that the decision is void, the parties have entered into a new agreement under date of the 13th of February 1909, according to which, without considering the conclusive character of the first decision, this tribunal is called upon to decide whether the decision of umpire Barge, in virtue of the circumstances and in accordance with the principles of international law, be not void, and whether it must be considered so conclusive as to preclude a reexamination of the case on its merits;
Whereas by the agreement of February 13th, 1909,2 both parties have at least implicitly admitted, as vices involving the nullity of an arbitral decision, excessive exercise of jurisdiction and essential error in the judgment (exceso de poder y error esencial en el folio) ;
Whereas the plaintiff party alleges excessive exercise of jurisdic- tion and numerous errors in law and fact equivalent to essential error ;
*An agreement providing for the creation of the mixed commission for the settlement of claims of citizens, corporations, etc., of the United States against Venezuela. See ante, p. 74.
*Post, p. 235.
THE ORINOCO STEAMSHIP COMPANY CASE 231
Whereas, following the principles of equity in accordance with law, when an arbitral award embraces several independent claims, and consequently several decisions, the nullity of one is without influence on any of the others, more especially when, as in the pres- ent case, the integrity and the good faith of the arbitrator are not questioned; this being ground for pronouncing separately on each of the points at issue ;
I. As regards the 1,209,701.04 dollars:
Whereas this tribunal is in the first place called upon to decide whether the award of the umpire is void, and whether it must be considered conclusive; and whereas this tribunal would have to de- cide on the merits of the case only if the umpire's award be de- clared void ;
Whereas it is alleged that the umpire deviated from the terms of the agreement by giving an inexact account of the Grell contract and the claim based on it, and in consequence thereof fell into an essential error ; but since the award reproduces said contract textu- ally and in its entire tenor; whereas it is scarcely admissible that the umpire should have misunderstood the text and should have exceeded his authority by pronouncing on a claim which had not been submitted to him, by failing to appreciate the connection be- tween the concession in question and exterior navigation, the umpire having decided in tcrminis, that "the permission to navigate these channels was only annexed to the permission to call at Trinidad" ;
Whereas the appreciation of the facts of the case and the inter- pretation of the documents were within the competence of the um- pire and as his decisions, when based on such interpretation, are not subject to revision by this tribunal, whose duty it is not to say if the case had been well or ill judged, but whether the award must be annulled; that if an arbitral decision could be disputed on the ground of erroneous appreciation, appeal and revision, which the Conventions of The Hague of 1899 and 1907 made it their object to avert, would be the general rule;
Whereas the point of view from which the umpire considered the claim of $513,000 (afterwards reduced in the conclusions of the United States of America to $335,000, and being part of said sum
232 THE HAGUE COURT REPORTS
of $1,209,701.04), is the consequence of his interpretation of the contract of May 10th, 1900, and of the relation between this contract and the decree of the same date;
Whereas the circumstance that the umpire, not content to have based his award on his interpretation of the contracts, which of itself should be deemed sufficient, h?s invoked other subsidiary rea- sons, of a rather more technical character, can not vitiate his deci- sion;
II. As regards the 19,200 dollars (100,000 bolivares) :
Whereas the agreement of February 17th, 1903, did not invest the arbitrators with discretionary powers, but obliged them to give their decision on a basis of absolute equity without regard to objections of a technical nature, or to the provisions of local legislation (con arreglo absolute a la equidad, sin reparar en objeciones tecnicas, ni en las disposiciones de la legislation local) ;
Whereas excessive exercise of power may consist, not only in deciding a question not submitted to the arbitrators, but also in misinterpreting the express provisions of the agreement in respect of the way in which they are to reach their decisions, notably with regard to the legislation or the principles of law to be applied ;
Whereas the only motives for the rejection of the claim for 19,200 dollars are: 1st, the absence of all appeal to the Venezuelan courts of justice, and 2nd, the omission of any previous notification of cession to the debtor, it being evident that "the circumstance that the question might be asked if on the day this claim was filed, this indebtedness was proved compellable," could not serve as a justification of rejection;
Whereas it follows from the agreements of 1903 and 1909 — on which the present arbitration is based — that the United States of Venezuela had by convention renounced invoking the provisions of Article 14 of the Grell contract and of Article 4 of the contract of May 10th, 1900, and as at the date of said arguments it was, in fact, certain that no lawsuit between the parties had been brought before the Venezuelan courts and as the maintenance of Venezuelan juris- diction with regard to these claims would have been incompatible and irreconcilable with the arbitration which had been instituted ;
THE ORINOCO STEAMSHIP COMPANY CASE 233
Whereas there is a question not of the cession of a concession but of the cession of a debt, and as the omission to notify previously the cession of a debt constitutes but a failure to observe a prescrip- tion of local legislation, though a similar prescription also exists in other legislations, it can not be considered as required by absolute equity, at least when the debtor actually possessed knowledge of the cession and has paid neither the assignor nor the assignee ;
III. As regards the 147,638.79 dollars:
Whereas with regard to the 1,053 dollars for the transport of passengers and merchandise in 1900 and the 25,845.20 dollars for the hire of the steamers Delta, Socorro, Masparro, Guanare, Heroe, from July 1900 to April 1902, the award of the umpire is based only on the omission of previous notification of the cession to the Government of Venezuela or of the acceptance by it, this means of defense being eliminated by the agreement, as mentioned before ;
Whereas the same might be said of the claim for 19,571.34 dollars for the restitution of national taxes, said to have been collected contrary to law, and of that of 3,509.22 dollars on account of the retention of the Bolivar; but as it has not been proved on the one hand that the taxes here under discussion belonged to those from which the Orinoco Shipping and Trading Company was exempt, and on the other hand that the fact objected to proceeded from abuse of authority on the part of the Venezuelan consul; and as both claims must therefore be rejected on their merits, though on other grounds, the annulment of the award on this point would be without interest;
Whereas the decision of the umpire, allowing 27,692.31 dollars instead of 28,461.53 dollars for the retention and hire of the Mas- parro and Socorro from March 21st to September 18th, 1902, as re- gards the 769.22 dollars disallowed, is based here also only on the omission of notification of the cession of the debt ;
Whereas the umpire's decision with regard to the other claims included under this head for the period after April 1st, 1902, is based on a consideration of facts and on an interpretation of legal prin- ciples which are subject neither to reexamination nor to revision by this tribunal, the decisions awarded on these points not being void ;
234 THE HAGUE COURT REPORTS
IV. As regards the 25,000 dollars:
Whereas the claim for 25,000 dollars for counsel fees and ex- penses of litigation has ben disallowed by the umpire in consequence of the rejection of the greater part of the claims of the United States of America, and as by the present award some of these claims having been admitted it seems equitable to allow part of this sum, which the tribunal fixes ex aequo et bono at 7,000 dollars ;
Whereas the Venezuelan law fixes the legal interest at 3% and as, under these conditions, the tribunal, though aware of the in- sufficiency of this percentage, can not allow more;
For these reasons:
The tribunal declares void the award of umpire Barge dated February 22nd, 1904, on the four following points:
1°, as regards the 19,200 dollars;
2°, as regards the 1,053 dollars;
3°, as regards the 25,845.20 dollars;
4°, as regards the 769,22 dollars deducted from the claim for 28,461.53 dollars for the retention and hire of the Masparro and Socorro;
And deciding, in consequence of the nullity thus recognized and by reason of the elements submitted to its appreciation :
Declares these claims founded and allows to the United States of America, besides the sums allowed by the award of the umpire of February 22nd, 1904, the sums of :
1°, 19,200 dollars; 3°, 25,845.20 dollars;
2°, 1,053 dollars; 4°, 769.22 dollars;
the whole with interest at 3 per cent from the date of the claim (June 16th, 1903), the whole to be paid within two months after the date of the present award;
Allows besides for the indemnification of counsel fees and ex- penses of litigation 7,000 dollars;
Rejects the claim for the surplus, the award of umpire Barge of February 22nd, 1904, preserving, save for the above points, its full and entire effect.
Done at The Hague in the Permanent Court of Arbitration in triplicate original, October 25th, 1910.
The President: LAMMASCH
The Secretary General: MICHIELS VAN VERDUYNEN
THE ORINOCO STEAMSHIP COMPANY CASE 235
AGREEMENT FOR ARBITRATION
Protocol of an agreement between the United States of America and the United States of Venezuela for the decision and adjustment of certain claims. — Signed at Caracas, February 13, /pop.1
William I. Buchanan, high commissioner, representing the Presi- dent of the United States of America, and Doctor Francisco Gonzalez Guinan, Minister for Foreign Affairs of the United States of Vene- zuela, duly authorized by General Juan Vicente Gomez, Vice-Presi- dent of the United States of Venezuela, in charge of the Presidency of the Republic, having exhibited to each other and found in due form their respective powers, and animated by the spirit of sincere friendship that has always existed and should exist between the two nations they represent, having conferred during repeated and lengthy conferences concerning the manner of amicably and equitably adjust- ing the differences existing between their respective Governments with regard to the claims pending between them since neither the United States of America nor the United States of Venezuela aspires to anything other than sustaining that to which in justice and equity it is entitled; and as a result of these conferences have recognized the great importance of arbitration as a means toward maintaining the good understanding which should exist and increase between their respective nations, and to the end of avoiding hereafter, so far as possible, differences between them, they believe it is from every point of view desirable that a treaty of arbitration shall be adjusted between their respective Governments.
With respect to the claims that have been the subject of their long and friendly conferences, William I. Buchanan and Doctor Francisco Gonzalez Guinan have found that the opinions and views concerning them sustained by their respective Governments have been, and are, so diametrically opposed and so different that they have found it diffi- cult to adjust them by common accord; wherefore it is necessary to resort to the conciliatory means of arbitration, a measure to which the two nations they represent are mutually bound by their signatures to the treaties of the Second Peace Conference at The Hague in 1907, and one which is recognized by the entire civilized world as the only satisfactory means of terminating international disputes.
Being so convinced, and firm in their resolution not to permit, for any reason whatever, the cordiality that has always existed between
^Official report, p. 1. For the Spanish text, see Appendix, p 506
236 THE HAGUE COURT REPORTS
their respective countries to be disturbed, the said William I. Buchanan and Doctor Francisco Gonzalez Guinan, thereunto fully authorized, have adjusted, agreed to and signed the present protocol for the set- tlement of the said claims against the United States of Venezuela, which are as follows:
1. The claim of the United States of America on behalf of the Orinoco Steamship Company;
[Paragraphs Nos. 2 and 3 are omitted as they do not refer to the case of the Orinoco Steamship Company.]
ARTICLE 1
With respect to the first of these claims, that of the Orinoco Steam- ship Company, the United States of Venezuela has upheld the immu- tability of the arbitral decision of umpire Barge, rendered in this case, alleging that said decision does not suffer from any of the causes which by universal jurisprudence give rise to its nullity, but rather that it is of an unappealable character, since the compromis of arbitra- tion can not be considered as void, nor has there been an excessive exercise of jurisdiction, nor can the corruption of the judges be al- leged, nor an essential error in the judgment; while on the other hand, the United States of America, citing practical cases, among them the case of the revision, with the consent of the United States of America, of the arbitral awards rendered by the American- Vene- zuelan mixed commission created by the Convention of April 25, 1866, and basing itself on the circumstances of the case, considering the principles of international law and of universal jurisprudence, has upheld not only the admissibility but the necessity of the revision of said award; in consequence of this situation, William I. Buchanan and Doctor Francisco Gonzalez Guinan, in the spirit that has marked their conferences, have agreed to submit this case to the elevated criterion of the arbitral tribunal created by this protocol, in the fol- lowing form:
The arbitral tribunal shall first decide whether the decision of um- pire Barge, in this case, in view of all the circumstances and under the principles of international law, is not void, and whether it must be considered so conclusive as to preclude a reexamination of the case on its merits. If the arbitral tribunal decides that said decision must be considered final, the case will be considered by the United States of America as closed; but on the other hand, if the arbitral tribunal decides that said decision of umpire Barge should not be considered
THE ORINOCO STEAMSHIP COMPANY CASE 237
as final, said arbitral tribunal shall then hear, examine and determine the case and render its decision on the merits.
[Articles 2 and 3 are omitted, as they do not refer to the case of the Orinoco Steamship Company.]
ARTICLE 4
The United States of America and the United States of Venezuela having, at the Second Peace Conference held at The Hague in 1907, accepted and recognized the Permanent Court of The Hague, it is agreed that the cases mentioned in Articles 1, 2 and 3 of this protocol, that is to say, the case of the Orinoco Steamship Company, that of the Orinoco Corporation and of its predecessors in interest and that of the United States and Venezuela Company, shall be submitted to the jurisdiction of an arbitral tribunal composed of three arbitrators chosen from the above-mentioned Permanent Court of The Hague.
No member of said Court who is a citizen of the United States of America or of the United States of Venezuela shall form part of said arbitral tribunal, and no member of said Court can appear as counsel for either nation before said tribunal.
This arbitral tribunal shall sit at The Hague.
ARTICLE 5
The said arbitral tribunal shall, in each case submitted to it, deter- mine, decide and make its award, in accordance with justice and equity. Its decisions in each case shall be accepted and upheld by the United States of America and the United States of Venezuela as final and conclusive.
ARTICLE 6
In the presentation of the cases to the arbitral tribunal both parties may use the French, English or Spanish language.
ARTICLE 7
Within eight months from the date of this protocol, each of the parties shall present to the other and to each of the members of the arbitral tribunal, two printed copies of its case, with the documents and evidence on which it relies, together with the testimony of its respective witnesses.
238 THE HAGUE COURT REPORTS
Within an additional term of four months, either of the parties may in like manner present a counter-case with documents and addi- tional evidence and depositions, in answer to the case, documents, evidence and depositions of the other party.
Within sixty days from the expiration of the time designated for the filing of the counter-cases, each Government may, through its representative, make its arguments before the arbitral tribunal, either orally or in writing, and each shall deliver to the other copies of any arguments thus made in writing, and each party shall have a right to reply in writing, provided such reply be submitted within the sixty days last named.
ARTICLE 8
All public records and documents under the control or at the dis- posal of either Government or in its possession, relating to the matters in litigation shall be accessible to the other, and, upon request, certi- fied copies of them shall be furnished. The documents which each party produces in evidence shall be authenticated by the respective Minister for Foreign Affairs.
ARTICLE 9
All pecuniary awards that the arbitral tribunal may make in said cases shall be in gold coin of the United States of America, or in its equivalent in Venezuelan money, and the arbitral tribunal shall fix the time of payment, after consultation with the representatives of the two countries.
ARTICLE 10
It is agreed that within six months from the date of this protocol, the Government of the United States of America and that of the United States of Venezuela shall communicate to each other, and to the Bureau of the Permanent Court at The Hague, the name of the arbitrator they select from among the members of the Permanent Court of Arbitration.
Within sixty days thereafter the arbitrators shall meet at The Hague and proceed to the choice of the third arbitrator in accordance with the provisions of Article 45 of The Hague Convention for the peaceful settlement of international disputes, referred to herein.
Within the same time each of the two Governments shall deposit with the said Bureau the sum of fifteen thousand francs on account of the expenses of the arbitration provided for herein, and from time
THE ORINOCO STEAMSHIP COMPANY CASE 239
to time thereafter they shall in like manner deposit such further sums as may be necessary to defray said expenses.
The arbitral tribunal shall meet at The Hague twelve months from the date of this protocol to begin its deliberations and to hear the arguments submitted to it. Within sixty days after the hearings are closed its decisions shall be rendered.
ARTICLE 11
Except as provided in this protocol the arbitral procedure shall con- form to the provisions of the Convention for the peaceful settlement of international disputes, signed at The Hague on October 18, 1907, to which both parties are signatory, and especially to the provisions of Chapter III thereof.
ARTICLE 12
It is hereby understood and agreed that nothing herein contained shall preclude the United States of Venezuela, during the period of five months from the date of this protocol, from reaching an amicable adjustment with either or both of the claimant companies referred to in Articles 2 and 3 herein,1 provided that in each case wherein a settle- ment may be reached, the respective company shall first have obtained the consent of the Government of the United States of America.
The undersigned, William I. Buchanan and Francisco Gonzalez Guinan, in the capacity which each holds, thus consider their confer- ences with respect to the differences between the United States of America and the United States of Venezuela as closed, and sign two copies of this protocol of the same tenor and to one effect, in both the English and Spanish languages, at Caracas, on the thirteenth day of February one thousand nine hundred and nine.
WILLIAM I. BUCHANAN [SEAL] F. GONZALEZ GUINAN [SEAL]
1Articles 2 and 3 not printed, as they have no bearing on the Orinoco Steam- ship Company Case.
240 THE HAGUE COURT REPORTS
ADDITIONAL DOCUMENTS
Opinion of Mr. Bainbridge, in the original Orinoco Steamship Com- pany Case before the United States and Venezuelan Claims Com- mission of
Inasmuch as, by reason of a disagreement between the commission- ers, this claim is to be submitted to the umpire, to whom in such case the protocol exclusively confides its decision, the commissioner on the part of the United States limits himself to the consideration of certain questions which have been raised by the respondent Government, affecting the competency of the commission to determine this very important claim.
It may be presumed that in framing the convention establishing the commission, the high contracting parties had clearly in view the scope of the jurisdiction to be conferred upon it and deliberately chose, in order to define that scope, the words most appropriate to that end.
Article 1 of the protocol defines the jurisdiction of the commission in the following terms :
All claims owned by citizens of the United States of America against the Republic of Venezuela which have not been settled by diplomatic agreement or by arbitration between the two Gov- ernments, and which shall have been presented to the commission hereinafter named by the Department of State of the United States or its legation at Caracas, shall be examined and decided by a mixed commission, which shall sit at Caracas, and which shall consist of two members, one of whom is to be appointed by the President of the United States and the other by the President of Venezuela. It is agreed that an umpire may be named by the Queen of the Netherlands.2
The protocol was signed at Washington on behalf of the respective Governments on the 17th of February, 1903. In view of the explicit language of the article quoted above, it would seem too clear for argu- ment that the contracting parties contemplated and agreed to the submission to this tribunal of all claims, not theretofore settled by diplomatic agreement or by arbitration, which were on that date owned by citizens of the United States against the Republic of Venezuela.
The Orinoco Steamship Company is a corporation organized and existing under and by virtue of the laws of the State of New Jersey. It is the successor in interest, by deed of assignment dated April 1st,
1 United States and Venezuela Arbitration at The Hague, Appendix to the Case of the United States, vol. i, p. 654. *Ante, p. 74.
THE ORINOCO STEAMSHIP COMPANY CASE 241
1902, of the Orinoco Shipping and Trading Company, Limited, a jcompany limited by shares, organized under the English companies acts of 1862 to 1893, and duly registered in the office of the register of joint stock companies, London, England, on the 14th day of July, 1898. Among other of the assets transferred by the said deed of assignment were "all franchises, concessions, grants made in favor of the Orinoco Shipping and Trading Company, Limited, by the Repub- lic of Venezuela, particularly the concession granted by the Govern- ment of Venezuela for navigation by steamer from Ciudad Bolivar to Maracaibo, made originally by the national Executive with Manuel Antonio Sanchez, and approved by Congress on the 8th day of June, 1894," and "all claims and demands existing in favor of the Orinoco Shipping and Trading Company, Limited, against the Republic of Venezuela." The claims and demands referred to constitute in the main the claim here presented on behalf of the Orinoco Steamship Company. The learned counsel for Venezuela contends that:
At the time when the acts occurred which are the basis of the claim, the Orinoco Steamship Company did not exist and could not have had any rights before coming into existence, and in order that it might be protected to-day by the United States of America it would be necessary, in accordance with the stipulations of the protocol, that the damages, in the event of being a fact, should have been suffered by an American citizen, not that they should have been suffered by a third party of different nationality and later transferred to an American citizen; such a proceeding is completely opposed to equity and to the spirit of the protocol.
In the case of Abbiatti vs. Venezuela before the United States and Venezuelan Claims Commission of 1890, the question arose whether the claimant, not having been a citizen of the United States at the time of the occurrences complained of, had a standing in court ; and it was held that under the treaty claimants must have been citizens of the United States "at least when the claims arose." This was declared to be the "settled doctrine." Mr. Commissioner Little in his opinion says :
As observed elsewhere, the infliction of a wrong upon a State's own citizen is an injury to it, and in securing redress it acts in discharge of its own obligations and, in a sense, in its own inter- est. This is the key — subject, of course, to treaty terms — for the determination of such jurisdictional questions : Was the plain- tiff State injured? It was not, when the person wronged was at the time a citizen of another State. Naturalization transfers allegiance, but not existing State obligations.
242 THE HAGUE COURT REPORTS
It is to be observed that in attempting to lay down a rule applicable to the case, the commission is careful to make the significant reserva- tion that the rule enunciated is "subject of course to treaty terms." It does not deny the competency of the high contracting parties to provide for the exercise of a wider jurisdiction by appropriate terms in a treaty. And that is precisely what has been done here. The unequivocal terms employed in the present protocol were manifestly chosen to confer jurisdiction of all claims owned (on February 17, 1903 ) by the citizens of the United States against the Republic of Vene- zuela, presented to the commission by the Department of State of the United States or its legation at Caracas. Under these treaty terms, the key to such a jurisdictional question as that under consideration is the ownership of the claim by a citizen of the United States of America on the date the protocol was signed.
The present claim, together with other assets of the Orinoco Ship- ping and Trading Company, Limited, was acquired by valid deed of assignment by the Orinoco Steamship Company, a citizen of the United States, on April 1st, 1902, long prior to the signing of the protocol, and is therefore clearly within the jurisdiction of this commission.
Pursuant to the requirement of the convention, the commissioners and the umpire, before assuming the functions of their office took a solemn oath carefully to examine and impartially decide according to justice and the provisions of the convention all claims submitted to them. Undoubtedly the first question to be determined in relation to each claim presented is whether or not it comes within the terms of the treaty. If it does, the jurisdiction of the commission attaches.
Jurisdiction is the power to hear and determine a cause; it is coram judice whenever a case is presented which brings this power into action. United States vs. Arredondo, 6 Pet., 691.
Thenceforward the commission is directed by the protocol and is bound by its oath carefully to examine and impartially to decide in conformity with the principles of justice and the rules of equity all questions arising in the claim, and its decision is declared to be final and conclusive.
The jurisdiction exercised by this commission is derived from a solemn compact between independent nations. It supersedes all other jurisdictions in respect of all matters properly within its scope. It can not be limited or defeated by any prior agreement of the parties litigant to refer their contentions to the local tribunals. Local juris-
THE ORINOCO STEAMSHIP COMPANY CASE 243
diction is displaced by international arbitration; private agreement is superseded by public law or treaty.
As to every claim fairly within the treaty terms, therefore, the func- tions of this commission, under its fundamental law and under its oath, are not fulfilled until to its careful examination there is added an impartial decision upon its merits. It can not deny the benefit of its jurisdiction to any claimant in whose behalf the high contracting par- ties have provided this international tribunal. Jurisdiction assumed, some decision, some final and conclusive action in the exercise of its judicial power is incumbent upon the commission. Mr. Commissioner Gore in the case of the Betsy, before the United States and British Commission of 1794, well said :
To refrain from acting when our duty calls us to act, is as wrong as to act where we have no authority. We owe it to the respective Governments to refuse a decision in cases not submitted to us; we are under equal obligation to decide on those cases that are within the submission. 3 Moore, Int. Arb., 2290.
Finally, the protocol imposes upon this tribunal the duty of deciding all claims "upon a basis of absolute equity, without regard to objec- tions of a technical nature, or of the provisions of local legislation." Clearly the high contracting parties had in view the substance and not the shadow of justice. They sought to make the remedies to be afforded by the commission dependent not upon the niceties of legal refinement, but upon the very right of the case. The vital question in this, as in every other claim before this tribunal, is whether and to what extent citizens of the United States of America have suffered loss or injury; and whether and to what extent the Government of Vene- zuela is responsible therefor.
Opinion of Mr. Grisanti, in the original Orinoco Steamship Company Case before the United States and Venezuelan Claims Commission of ipoj.1
The Orinoco Steamship Company, Limited, demands payment of the Government of Venezuela for four claims, as follows :
*United States and Venezuela Arbitration at the Hague, Appendix to the Case of the United States, vol. i, p. 670.
Attention is called to the fact that the amounts claimed (U. S. money) as here given differ from the amounts given in the arbitral award. This discrepancy is probably due to errors in calculation, the amounts in bolivars being identical in all cases.
244 THE HAGUE COURT REPORTS
1st. For $1,209,701.05 which sum the claimant company reckons as due for damages and losses caused by the Executive decree of Octo- ber 5, 1900, said decree having, as the company affirms, annulled its contract-concession celebrated on May 26, 1894. The company deems as a reasonable value of the contract $82,432.78 per annum.
2nd. For $147,638.79 at which the claimant company estimates the damages and losses sustained during the last revolution, including services rendered to the Government of the Republic.
3rd. For 100,000 bolivars, or $19,219.19 overdue on account of the transaction celebrated on May 10, 1900.
4th. For $25,000 for counsel fees and expenses incurred in car- rying out said claims.
The forementioned claims are held by the Orinoco Steamship Com- pany, a corporation of American citizenship, organized and existing under and pursuant to the provision of an act of the legislature of the State of New Jersey as assignee and successor of the Orinoco Shipping and Trading Company Limited, of English nationality, organized in conformity with the respective laws of Great Britain.
And in fact, it has always been the Orinoco Shipping and Trading Company Limited which has dealt and contracted with the Govern- ment of Venezuela, as evidenced by the documents and papers relating thereto. In case the forementioned claims be considered just and correct, the rights from which they arise were originally invested in the juridical character (persona juridica) of the Orinoco Shipping and Trading Company Limited; and its claims are for the first time presented to this mixed commission by and on behalf of the Orinoco Steamship Company, as its assignee and successor, in virtue of an assignment and transfer which appears in Exhibit No. 3 annexed to the memorial in pages 51 to 59 of the same, and in the reference to which assignment we shall presently make some remarks.
Before stating an opinion in regard to the grounds of said claims, the Venezuelan commissioner holds that this commission has no juris- diction to entertain them. Said objection was made by the honorable agent for Venezuela prior to discussing the claims in themselves, and as the Venezuelan commissioner considers such objection perfectly well founded he adheres to it and will furthermore state the powerful rea- sons on which he considers said objection to be founded.
It is a principle of international law, universally admitted and prac- ticed, that for collecting a claim protection can only be tendered by the Government of the nation belonging to the claimant who originally acquired the right to claim, or in other words that an international
THE ORINOCO STEAMSHIP COMPANY CASE 245
claim must be held by the person who has retained his own citizenship since said claim arose up to the date of its final settlement, and that only the government of such person's country is entitled to demand payment for the same, acting on behalf of the claimant. Furthermore, the original owner of the claims we are analyzing was the Orinoco Shipping and Trading Company Limited — an English company; and that which demands their payment is the Orinoco Steamship Company Limited — an American company; and as claims do not change na- tionality for the mere fact of their future owners having a different citizenship, it is as clear as daylight that this Venezuelan-American Mixed Commission has no jurisdiction for entertaining said claims. The doctrine which I hold has also been sustained by important de- cisions awarded by international arbitrators.
Albino Abbiatti applied to the Venezuelan-American Mixed Com- mission of 1890, claiming to be paid several amounts which in his opin- ion the Government of Venezuela owed him. The acts alleged as the grounds for the claims took place in 1863 and 1864, at which time Abbiatti was an Italian subject, and it appears that subsequently, in 1866, he became a United States citizen. The commission disallowed the claim, declaring its want of jurisdiction to entertain said claim for the following reasons :
Has the claimant then, not having been a citizen of the United States at the time of the occurrences complained of, a standing here? The question is a jurisdictional one. The treaty provides: "All claims on the part of corporations, companies or individuals, citizens of the United States, upon the Government of Venezuela . shall be submitted to a new commission, etc." Citizens when? In claims like this they must have been citizens at least when the claims arose. Such is the settled doctrine. The plaintiff State is not a claim agent. As observed elsewhere, the infliction of a wrong upon a state's own citizen is an injury to it, and in securing redress it acts in discharge of its own obligation and, in a sense, in its own interest. This is the key — subject, of course, to treaty terms — for the determination of such jurisdictional ques- tions: Was the plaintiff State injured? It was not, where the person wronged was at the time a citizen of another state, although afterwards becoming its own citizen. The injury there was to the other state. Naturalization transfers allegiance, but not existing state obligations. Abbiatti could not impose upon the United States, by becoming its citizen, Italy's existing duty toward him. This is not a case of uncompleted wrong at the time of citizenship, or of one continuous in its nature.
The commission has no jurisdiction of the claim for want of required citizenship, and it is therefore dismissed. (United States
246 THE HAGUE COURT REPORTS
and Venezuelan Claims Committee. Claim of Albina Abbiatti vs. The Republic of Venezuela, No. 34, p. 84.)
In the case mentioned Abbiatti had always owned the claim ; but as he was an Italian subject when the damage occurred, the commission declared it had no jurisdiction to entertain said claim, notwithstand- ing that at the time of applying to the commission he had become a citizen of the United States.
Article 1 of the protocol signed at Washington on February 17 of the current year says, textually, as follows :
All claims owned by citizens of the United States of America against the Republic of Venezuela which have not been settled by diplomatic agreement or by arbitration between the two Govern- ments, and which shall have been presented to the commission hereinafter named by the Department of State of the United States or its legation at Caracas, shall be examined and decided by a mixed commission, etc.
Owned when? we beg to ask, in our turn, as in the above-inserted decision. Owned ab initio, that is to say, owned since the moment when the right arose up to the moment of applying with it to this mixed commission. The verb "to own" means to possess, and as used in the protocol signifies "being the original proprietor" ; therefore it will not suffice that the claim be possessed by a citizen of the United States at the time the protocol was signed ; the jurisdiction of this commission requires that the right should have risen in the citizen of the United States and that said citizen shall never have failed to be the owner of such a right. Thus and thus only could the Govern- ment of the United States protect the claimant company ; thus, and on such conditions alone, would this commission have jurisdiction to entertain said claims.
If the clause, "All claims owned by citizens of the United States of America," etc., were considered doubtful, and consequently should require interpretation, it ought undoubtedly to be given in accordance with the forementioned universal principle — the basis of this state- ment— and not in opposition to it. Derogation of a principle of law in a judicial document has to be most clearly expressed ; otherwise, the principle prevails, and the protocol must be interpreted accordingly.
While in some of the earlier cases the decisions as to what con- stituted citizenship within the meaning of the convention were exceptional, it was uniformly held that such citizenship was nec- essary when the claim was presented as well as when it arose.
THE ORINOCO STEAMSHIP COMPANY CASE 247
Numerous claims were dismissed on the ground that the claimant was not a citizen when the claim arose. The assignment of a claim to an American citizen was held not to give the commission juris- diction.
An American woman who was married in July 1861 to a British subject in Mexico was held not to be competent to appear before the commission as a claimant in respect of damage done by the Mexican authorities in November 1861 to the estate of her former husband, though her second husband had in 1866 be- come a citizen of the United States by naturalization. On the other hand, where the nationality of the owner of a claim, originally American or Mexican, had for any cause changed, it was held that the claim could not be entertained. Thus, where the ancestor, who was the original owner, had died, it was held that the heir could not appear as a claimant unless his nationality was the same as that of his ancestor. The person who had the "right to the award" must, it was further held, be considered as the "real claim- ant57 by the commission, and, whoever he might be, must "prove himself to be a citizen" of the government "by which the claim was presented." (Moore, International Arbitrations, vol. 2, p. 1353.)
In the memorial (No. 4) it is affirmed that 99 per cent of the total capital stock of the Orinoco Shipping and Trading Company, Limited, was owned by citizens of the United States of America, but this cir- cumstance, even if it were proved, does not deprive said company of its British nationality, on account of its being organized, according to the referred-to memorial, under the English companies acts of 1862 to 1893 and duly registered in the office of the register of joint stock companies, London, on the 14th of July, 1898. The fact is that lim- ited companies owe their existence to the law in conformity to which they have been organized, and consequently their nationality can be no other than that of said law. The conversion of said company, which is English, into the present claimant company, which is North American, can have no retroactive effect in giving this tribunal juris- diction for entertaining claims which were originally owned by the first-mentioned company, as that would be to overthrow or infringe fundamental principles.
Naturalization not retroactive. Without discussing here the theory about the retroactive effect of naturalization for certain purposes, I believe it can be safely denied in the odious matter of injuries and damages. A government may resent an indignity or injustice done to one of its subjects, but it would be absurd to open an asylum to all who have, or believe they have, received
248 THE HAGUE COURT REPORTS
some injury or damage at the hands of any existing government, to come and be naturalized for the effect of obtaining redress for all their grievances. (Moore, work cited, vol. 3, p. 2483.)
The three quotations inserted hold and sanction the principle that, in order that the claimant might allege his rights before a mixed claims commission organized by the government of his country and that of the owing nation, it is necessary that the claim should always have be- longed to him and that he should never have changed his nationality. And this principle demands that this commission should declare its want of jurisdiction, whether the two companies be considered as dif- ferent juridical characters (personas juridicas) and that the claimant is a successor of the other, or whether they be considered as one and the same, having changed nationality.
I now beg to refer to another matter — to the analysis of the judicial value of the deed of assignment.
In the first number of the exhibit "The Orinoco Shipping and Trad- ing Company" appears selling to "The Orinoco Steamship Company," which is the claimant, the nine steamships named, respectively, Boli- var, Mansanares, Delta, Apure, Guanare, Socorro, Masparro, Heroe, and Morganito. These steamships were destined for coastal service or cabotaje, some to navigate the rivers of Guanare, Cojedes, Portuguesa, and Masparro from Ciudad Bolivar up to the mouth of the Uribante River (Olachea contract of June 27, 1891), and others to navigate between said Ciudad Bolivar and Maracaibo, and to call at the ports of La Vela, Puerto Cabello, La Guaira, Guanta, Puerto Sucre, and Carupano (Grell contract, June 8, 1894) ; this line was granted the option of calling at the ports of Curasao and Trinidad while the Gov- ernment fixes definitely the transshipment ports for merchandise from abroad, and while they are making the necessary installations. (Ar- ticle 12.)
However, the coastal trade can only be carried on by ships of Vene- zuelan nationality, in conformity with Article 1, Law XVIII, of the Financial Code, which provides that —
Internal maritime trade of cabotaje or coastal service is that which is carried on between the open ports of Venezuela and other parts of the continent, as well as between the banks of its lakes and rivers, in national ships, whether laden with foreign merchan- dise for which duties have been paid, or with native goods or pro- ductions. (Comer do de Cabotaje, p. 87.)
THE ORINOCO STEAMSHIP COMPANY CASE 249
And if we further add that the steamers were obliged to navigate under the Venezuelan flag (Article 2 of the Grell contract), as in fact they did, the result is that said steamers are Venezuelan by national- ization, wherefore the assignment of said steamers alleged by the Orinoco Shipping and Trading Company, Limited, to the claimant company is absolutely void and of no value, owing to the fact that the stipulations provided by the Venezuelan law (here inserted) for the validity of such an assignment were not fulfilled.
Law XXXIII (Financial Code) on the Nationalisation of Ships
ARTICLE IST. The following alone will be held as national ships: IST. ........
2ND. ........
3RD. ........
4TH. Those nationalized according to law.
ARTICLE 6x11. .......
The guaranty given for the proper use of the flag must be to the satisfaction of the custom-house. The property deed must be registered at the office of the place where the purchase takes place, and if such purchase is made in a foreign country a certi- ficate of the same, signed by the Venezuelan consul and by the harbor master, shall have to be sent, drawn on duly stamped paper.
ARTICLE 12ra. When a ship, or part thereof, is to be assigned, a new patent must be obtained by the assignee, after having pre- sented the new title deeds to the custom-house and receiving therefrom the former patent, stating measurements and tonnage therein contained, in order to obtain said patent.
The assignment of the forementioned steamer is, to the Government of Venezuela, void and of no value or effect whatever.
In Exhibit No. 2 "The Orinoco Shipping and Trading Company Limited" appears as assigning several immovable properties situated in the Territorio Federal Amasonas of the Republic of Venezuela to the claimant company, and the title deed has not been registered at the sub-register office of said Territory, as prescribed by the Venezuelan Civil Code in the following provisions:
ARTICLE 1883. Registration must be made at the proper office of the department, district, or canton where the immovable property which has caused the deed is situated.
ARTICLE 1888. In addition to those deeds which, by special de- cree, are subject to the formalities of registration, the following must be registered:
250 THE HAGUE COURT REPORTS
1st. All acts between living beings, due to gratuitous, onerous, or assignment title deeds of immovable or other property or rights susceptible of hypothecation.
In Exhibit No. 3, the Orinoco Shipping and Trading Company Limited appears assigning the Olachea contract of June 27, 1891, and the Grell contract of June 8, 1894. In assigning the first of these the approval of the Venezuelan Government was not obtained, either before or after, thereby infringing the following provision :
This contract may be transferred wholly or in part to any other person or corporation upon previous approval of the National Government.
In assigning the second the stipulation provided in Article 13 of giving previous notice to the Government was infringed. If any argument could be made in regard to the annulment of the latter assignment, there is no doubt whatever in regard to the annulment of the former, whereas in the foregoing provision the Government re- serves the right of being a contracting party in the assignment, and consequently said assignment, without the previous consent of the Government, is devoid of judicial efficacy.
The assignment of those contracts is, therefore, of no value for the Government of Venezuela.
The fifth paragraph of the same refers to the assignment which "The Orinoco Shipping and Trading Company Limited" intended to make to "The Orinoco Steamship Company" of all claims and demands exist- ing in favor of the party of the first part, either against the Republic of Venezuela or against any individuals, firms, or corporations. This transfer of credits, which are not specified nor even declared, and which has not been notified to the Government, is absolutely irregular, and lacks judicial efficacy with regard to all parties except the assignor and assignee companies, in conformity with Article 1496 of the Civil Code, which provides as follows :
An assignee has no rights against third parties until after the assignment has been notified to the debtor, or when said debtor has accepted said assignment.
The foregoing article is, in substance, identical to Article 1690 of the French Civil Code, and in reference thereto Baudry-Lacantinerie says that—
THE ORINOCO STEAMSHIP COMPANY CASE 251
Les formalites prescrites par Tart. 1690 ont pour but de dormer a la cession une certaine publicite, et c'est pour ce motif que la loi fait de leur accomplissement une condition de 1'investiture du cessionnaire a Tegard des tiers. Les tiers sont reputes ignorer la cession, tant qu'elle n'a pas ete rendue publique par la signification du transport ou par 1'acceptation authentique du cede ; voila pour- quoi elle ne leur devient opposable qu'a date de raccomplissement de Tune ou de 1'autre de ces formalites. (Precis du Droit Civil. Tome troisieme, p. 394, numero 624.)
Quelles sont les personnes que 1'article 1690 designe sous le nom de tiers, et a 1'egard desquelles le cessionnaire n'est saisi que par la notification ou 1'acceptation authentique du transport? Ce sont tous ceux qui n'ont pas ete parties a la cession et qui ont un in- teret legitime a la connaitre et a la contester, c'est-a-dire : 1. le cede ; 2. tous ceux qui ont acquis du chef du cedant des droits sur la creance cedee; 3. les creanciers chirographaires du cedant.
1. Le debiteur cede. — Jusqu'a ce que le transport lui ait ete notife ou qu'il Tait accepte, le debiteur cede a le droit de con- siderer le cedant comme etant le veritable titulaire de la creance. La loi nous fournit trois applications de ce principe. (Baudry- Lacantinerie, work and vol. quoted, p. 395. See also Laurent, "Principes de Droit Civil" vol. 24, p. 472. Y
I do not expect that the foregoing arguments will be contested, hav- ing recourse to the following provision of the protocol:
The commissioners, or in case of their disagreement, the umpire, shall decide all claims upon a basis of absolute equity, without regai d to objections of a technical nature or of the provisions of local legislation.
TRANSLATION : The formalities prescribed by Article 1690 are for the pur- pose of giving a certain publicity to the assignment, and it is for this reason that the law makes their fulfilment a condition to the investiture of the assignee as regards third parties. Third parties are supposed to know nothing of the assignment so long as it has not been made public by the notice of conveyance or by the authentic acceptance of the debtor whose debt is assigned ; this is why it can be alleged against them only after the fulfilment of one or the other of these formalities.
Who are these persons designated by Article 1690 by the name of third parties and with respect to whom the debtor whose debt is assigned is only responsible upon notice or the authentic acceptance of the conveyance? They are all those who have not been parties to the assignment and who have a legitimate interest in knowing about it and opposing it ; that is to say : ( 1 ) the debtor whose debt is assigned ; (2) all those who have acquired through the assignor rights to the claim assigned; (3) the creditors holding debts against the assignor in writing.
The debtor whose debt is assigned. Until he has^ been^ notified of the con- veyance or has accepted it the debtor whose debt is assigned has a right to consider the assignor as being the true owner of the claim. The law furnishes us three applications of this principle.
252 THE HAGUE COURT REPORTS
If such a broad sense were given to this clause in regard to all cases as to bar any consideration for Venezuelan law, it would not only be absurd, but monstrous. Such, however, can not be the case. How could a claim possibly be disallowed on the grounds of the claimant being a Venezuelan citizen without invoking the Venezuelan law, which bestows upon him said citizenship? How in certain commissions could Venezuela have been exempted from having to pay for damages caused by revolutionists if the judicial principles which establish such exemption had not been pleaded ? Said clause provides that no regard shall be had to objections of a technical nature, or of the provisions of local legislation, whenever such objections impair principles of equity, but when, in compliance with said principles, to disregard those objections would be to overthrow equity itself, and equity has to be the basis for all the decisions of this commission. In the present in- stance conformity exists between the one and the others. And in merely adding that the majority of the cited provisions are in reference to contracts, it is understood that their basis has been equity and not rigorous law. On the other hand, if this commission were to decide upon paying an award for a claim which the claimant company is not properly entitled to, through not being the owner thereof, it would be a contention against the precepts of equity.
In view, therefore, of the substantial irregularities of the deed of assignment and transfer, the Government of Venezuela has a perfect right to consider "The Orinoco Shipping and Trading Company Lim- ited" as the sole owner of the claims analyzed, and whereas said com- pany is of British nationality, this Venezuelan- American Mixed Com- mission has no jurisdiction to entertain the claim mentioned.
The incompetency of this commission has been perfectly established. I shall now analyze the claims themselves. The Orinoco Steamship Company holds that the Executive decree promulgated on October 5, 1900, allowing the free navigation of the Macareo and Pedernales channels, annulled its contract concession of MJay 26, 1894, which con- tract the claimant company considered as granting it the exclusive right to carry on foreign trade through said channels. The company states as follows:
Since said 16th day of December, A. D. 1901, notwithstanding the binding contract and agreement between the United States of Venezuela and the Orinoco Shipping and Trading Company Limited, and your memorialist as assignee of said company, to the contrary, said United States of Venezuela, acting through its duly constituted officials, has authorized and permitted said Mac-
THE ORINOCO STEAMSHIP COMPANY CASE 253
areo and Pedernales channels of the river Orinoco to be used and navigated by vessels engaged in foreign trade other than those be- longing to your memorialists or its predecessors in interest, and has thus enabled said vessels to do much of the business and to ob- tain the profits therefrom which, under the terms of said contract- concession of June 8, 1894, and the extension thereof of May 10, 1900, should have been done and obtained solely by your memorial- ist or its said predecessor in interest, and much of said business will continue to be done and the profits derivable therefrom will continue to be claimed and absorbed by persons and companies other than your memorialists, to its great detriment and damage. (Memorial, pp. 28 and 29.)
Let us state the facts such as they appear in the respective docu- ments.
On July 1, 1893, the Executive power issued a decree in order to prevent contraband which was carried on in the several bocos (mouths) of the river Orinoco, to wit:
ARTICLE 1. Vessels engaged in foreign trade with Ciudad Bolivar shall be allowed to proceed only by way of the Boca Grande of the river Orinoco; the Macareo and Pedernales channels being re- served for the coastal service, navigation by the other channels of the said river being absolutely prohibited.
On May 26, 1894, the Executive power entered into a contract with Mir. Ellis Grell, represented by his attorney, Mr. Manuel Antonio Sanchez, wherein the contractor undertook to establish and maintain in force navigation by steamers between Ciudad Bolivar and Mara- caibo in such manner that at least one journey per fortnight be made, touching at the ports of La Vela, Puerto Cabello, La Guaira, Guanta, Puerto Sucre, and Carupano. Article 12 of this contract stipulates as follows:
While the Government fixes definitely the transshipment ports for merchandise from abroad, and while they are making the neces- sary installations, the steamers of this line shall be allowed to call at the ports of Curasao and Trinidad and any one of the steamers leaving Trinidad may also navigate by the channels of the Macareo and Pedernales of the river Orinoco in conformity with the formal- ities which by special resolution may be imposed by the minister of finance in order to prevent contraband and to safeguard fiscal in- terests ; to all which conditions the contractor agrees beforehand.
On October 5, 1900, the national Executive promulgated the follow- ing decree:
254 THE HAGUE COURT REPORTS
ARTICLE I. The decree of the 1st of July, 1893, which prohibited the free navigation of the Macareo, Pedernales, and other navigable waterways of the river Orinoco is abolished.
Did the 1894 contract grant the Orinoco Shipping and Trading Com- pany Limited an exclusive privilege to engage in foreign trade with the use of said Macareo and Pedernales channels? The perusal of Article 12 above referred to will suffice without the least hesitation to answer this question negatively. The fact is that the company's con- tract-concession is for establishing the inward trade between the ports of the Republic, from Ciudad Bolivar to Maracaibo, and the com- pany's steamers were only granted a temporary permission to call at Curasao and Trinidad, while the Government fixed definitely the trans- shipment ports for merchandise from abroad, and while they were mak- ing the necessary installations.
It would be necessary to overthrow the most rudimental laws of logic in order to hold that a line of steamers established to engage in coastal trade or cabotaje, navigating on the Macareo and Pedernales channels, which are free for internal navigation, should have the privilege of engaging in foreign trade through the mentioned chan- nels. The decree of July 1 of 1893, promulgated with a view to pre- vent contraband in the channels of the river Orinoco and on the coast of Paria, is not a stipulation of the contract concession of the Orinoco Shipping and Trading Company Limited, and therefore the Govern- ment of Venezuela could willingly abolish it, as, in fact, it did abolish it on October 5, 1900. Neither is it reasonable to suppose that the Government at the time of celebrating the referred-to contract alien- ated its legislative powers, which, owing to their nature, are inalien- able. On the other hand, a privilege, being an exception to common law, must be most clearly established; otherwise it does not exist. Whenever interpretation is required by a contract it should be given in the sense of freedom, or, in other words, exclusive of privileges.
Furthermore, it is to be remarked that the Orinoco Shipping and Trading Company Limited has never complied with either of the two contracts (the Olachea and the Grell contracts) particularly as refers to the latter, as evidenced by a document issued by said company, a copy of which I shall present, and as evidenced also by the memorial (No. 15).
On May 10, 1900, a settlement was agreed to by the minister of internal affairs and the Orinoco Shipping and Trading Company Limited, in virtue whereof the Government undertook to pay the
THE ORINOCO STEAMSHIP COMPANY CASE 255
company 200,000 bolivars for all its claims prior to said convention, having forthwith paid said company 100,000 bolivars, and at the same time a resolution was issued by said minister granting the Grell con- tract (May 26, 1894) a further extension of six years.
The company holds that the decree of October 5, 1900, annulled its contract and also annihilated the above-mentioned prorogation, and that, as the concession of said prorogation had been the principal basis of the settlement for the company to reduce its credits to 200,000 boli- vars, said credits now arise in their original amount.
It has already been proved that the referred-to Executive decree of October 5, 1900, did not annul the Grell contract, and this will suffice to evidence the unreasonableness of such contention. It must, furthermore, be added that the settlement and the concession for pro- rogation are not the same act, nor do they appear in the same docu- ment ; therefore it can not be contended that the one is a condition or stipulation of the other. Besides, the concession for prorogation accounts for itself without having to relate it to the settlement ; whereas in the resolution relative to said prorogation the company on its part renounced its right to the subsidy of 4,000 bolivars which the Govern- ment had assigned to it in Article 7 of the contract.
The Venezuelan Commissioner considers that this commission has no jurisdiction to entertain the claim deduced by the Orinoco Steam- ship Company, and that, in case it had, said claims ought to be dis- allowed.
Award of Charles Augitstinus Henri Barge, umpire in the original Orinoco Steamship Company Case before the United States and Venezuelan Claims Commission of ipoj. — Caracas, February 22, 1904*
A difference of opinion arising between the commissioners of the United States of North America and the United States of Venezuela, this case was duly referred to the umpire.
The umpire having fully taken into consideration the protocol, and also the documents, evidence and arguments, and also likewise all other communications made by the two parties, and having impartially and carefully examined the same, has arrived at the decision embodied in the present award.
^United States and Venezuela Arbitration at the Hague, Appendix to the Case of the United States, vol. i, p. 686. See ante, p. 243, note 1, 2nd paragraph.
256 THE HAGUE COURT REPORTS
Whereas the Orinoco Steamship Company demands payment of the Government of Venezuela for four claims, as follows:
1st. $1,209,700.05 as due for damages and losses caused by the Executive decree of October 5th, 1900, having [by] this decree an- nulled a contract concession celebrated on May 26th, 1894;
2nd. 100,000 bolivars, or $19,219.19 overdue on account of a trans- action celebrated on May 10th, 1900;
3rd. $149,698.71 for damages and losses sustained during the last revolution, including services rendered to the Government of the Republic ;
4th. $25,000 for counsel fees and expenses incurred in carrying out said claims ;
And whereas the jurisdiction of this commission in this case is questioned, this question has in the first place to be investigated and decided ;
Now, whereas the protocol (on which alone is based the right and the duty of this commission to examine and decide "upon a basis of absolute equity, without regard to the objections of a technical nature or of the provisions of local legislation"), gives this commission the right and imposes the duty to examine and decide "all claims owned by citizens of the United States of America against the Republic of Venezuela which have not been settled by diplomatic agreement or by arbitration between the two Governments, and which shall have been presented to the commission by the Department of State of the United States or its legation at Caracas," it has to be examined in how far this claim of the Orinoco Steamship Company possesses the essential qualities to fall under the jurisdiction of this commission;
Now, whereas this claim against the Venezuelan Government was presented to this commission by the Department of State of the United States of America through its agent ;
And whereas it has not been settled by diplomatic agreement or arbitration ;
And whereas the Orinoco Steamship Company, as evidence shows, is a corporation created and existing under and by virtue of the laws of the State of New Jersey, in the United States of America,
There only remains to be examined if the company owns the claim brought before the commission ;
Now, whereas almost all the items of this claim — at all events those originated before the 1st of April, 1902 — are claims that "the Orinoco Shipping and Trading Company, Limited," an English corporation, pretended to have against the Government of Venezuela ;
THE ORINOCO STEAMSHIP COMPANY CASE 257
And whereas on the said April 1st, 1902, the said English company, for the sum of $1,000,000, sold and transferred to the American com- pany, the complainant [claimant], "all its claims and demands either against the Government of Venezuela or against individuals, firms and corporations/' these claims from that date prima facie show themselves as owned by the claimant;
Whereas further on it is true that according to the admitted and practiced rule of international law, in perfect accordance with the general principles of justice and perfect equity, claims do not change nationality by the fact that their consecutive owners have a different citizenship, because a state is not a claim agent, but only, as the infliction of a wrong upon its citizens is an injury to the state itself, it may secure redress for the injury done to its citizens, and not for the injury done to the citizens of another state,
Still, this rule may be overseen or even purposely set aside by a treaty,
And as the protocol does not speak — as is generally done in such cases — of all claims of citizens, etc. (which would rightly be inter- preted "all claims for injuries done to citizens, etc."), but uses the usual expression "all claims owned by citizens," it must be held that this uncommon expression was not used without a determined reason;
And whereas the evidence shows that the Department of State of the United States of America knew about these claims and took great interest in them (as is shown by the diplomatic correspondence about these claims presented to the commission in behalf of claimant), and that the plenipotentiary of Venezuela a short time before the signing of the protocol, in his character of United States envoy extraordinary and minister plenipotentiary, had corresponded with his Government about these claims, and that even as late as December 20th, 1902, and January 27th, 1903, one of the directors of the claimant company, J. van Vechten Olcott, wrote about these claims, in view of the event of arbitration, to the President of the United States of America, it is not to be accepted that the high contracting parties, anxious, as is shown by the history of the protocol, to set aside and to settle all questions about claims not yet settled between them, should have forgotten these very important claims when the protocol was redacted and signed,
And, therefore, it may safely be understood that it was the aim of the high contracting parties that claims [such] as these, being at the mo- ment of the signing of the protocol owned by citizens of the United States of North America, should fall under the jurisdiction of the
258 THE HAGUE COURT REPORTS
commission instituted to investigate and decide upon the claims the high contracting parties wished to see settled,
And, therefore, the jurisdiction of this commission to investigate and decide claims owned by citizens of the United States of North America at the moment of the signing of the protocol has to be recognized, without prejudice, naturally, of the judicial power of the commission, and its duty to decide upon a basis of absolute equity when judging about the rights the transfer of the ownership might give to claimant against third parties,
For all which reasons the claims presented to this commission on behalf of the American company, "the Orinoco Steamship Company," have to be investigated by this commission and a decision has to be given as to the right of the claimant company to claim what it does claim, and as to the duty of the Venezuelan Government to grant to the claimant company what this company claims for.
Now, as the claimant company in the first place claims for $1,209,- 700.05 as due for damages and losses caused by the Executive decree of October 5th, 1900, this decree having annulled a contract conces- sion celebrated on May 26th, 1894, this contract-concession and this decree have to be examined, and it has to be investigated :
Whether this decree annulled the contract-concession;
Whether this annulment, when stated, caused damages and losses;
Whether the Government of Venezuela is liable for those damages and losses;
And, in the case of this liability being proved, whether it is to claimant the Government of Venezuela is liable for these damages and losses.
And whereas the mentioned contract concession (a contract with Mr. Ellis Grell, transferred to the Venezuelan citizen, Manuel A. Sanchez, and approved by Congress of the United States of Venezuela on the 26th of May, 1894) reads as follows :
The Congress of the United States of Venezuela, in view of the contract celebrated in this city on the 17th of January of the present year between the minister of the interior of the United States of Venezuela, duly authorized by the chief of the national executive, on the one part, and on the other, Edgar Peter Gan- teaume, attorney for Ellis Grell, transferred to the citizen Manuel A. Sanchez, and the additional article of the same contract dated 10th of May instant, the tenor of which is as follows :
Dr. Feliciano Acevedo, minister of the interior of the United States of Venezuela, duly authorized by the chief of the national executive, on the one part, and Edgar Peter Ganteaume, attorney
THE ORINOCO STEAMSHIP COMPANY CASE 259
for Ellis Grell, and in the latter 's name and representation, who is resident in Port of Spain, on the other part, and with the af- firmative vote of the government council have celebrated a con- tract set out in the following articles :
ARTICLE 1. Ellis Grell undertakes to establish and maintain in force; navigation by steamers between Ciudad Bolivar and Mar- acaibo within the term of six months, reckoned from the date of this contract, in such manner that at least one journey per fort- night be made, touching at the ports of La Vela, Puerto Cabello, La Guaira, Guanta, Puerto Sucre, and Carupano, with power to extend the line to any duly established port of the Republic.
ARTICLE 2. The steamers shall navigate under the Venezuelan flag.
ARTICLE 3. The contractor undertakes to transport free of charge the packages of mail which may be placed on board the steamers by the authorities and merchants through the ordinary post-offices, the steamers thereby acquiring the character of mail steamers, and as such exonerated from all national dues.
ARTICLE 4. The contractor shall draw up a tariff of passages and freights by agreement with the Government.
ARTICLE 5. The company shall receive on board each steamer a Government employee with the character of fiscal postmaster, nominated by the minister of finance, with the object of looking after the proper treatment of the mails and other fiscal interests.
The company shall also transport public employees when in commission of the Government at half the price of the tariff, provided always that they produce an order signed by the minister of finance or by one of the presidents of the States. Military men on service and troops shall be carried for the fourth part of the tariff rates. The company undertakes also to carry gratis materials of war, and at half freights all other goods which may be shipped for account and by order of the National Government.
ARTICLE 6. The General Government undertakes to concede to no other line of steamers any of the benefits, concessions and ex- emptions contained in the present contract as compensation for the services which the company undertakes to render as well to national interests as those of private individuals.
ARTICLE 7. The Government of Venezuela will pay to the con- tractor a monthly subsidy of four thousand bolivars (4,000) so long as the conditions of the present contract are duly carried out.
ARTICLE 8. The National Government undertakes to exonerate from payment of import duties all machinery, tools, and accesso- ries which may be imported for the use of the steamers and all other materials necessary for their repair, and also undertakes to permit the steamers to supply themselves with coal and pro- visions, etc., in the ports of Curagao and Trinidad.
ARTICLE 9. The company shall have the right to cut from the national forests wood for the construction of steamers or neces- sary buildings and for fuel for the steamers of the line.
260 THE HAGUE COURT REPORTS
ARTICLE 10. The officers and crews of the steamers, as also the woodcutters and all other employees of the company, shall be exempt from military service, except in cases of international war.
ARTICLE 11. The steamers of the company shall enjoy in all the ports of the Republic the same freedom and preferences by law established as are enjoyed by the steamers of lines established with fixed itinerary.
ARTICLE 12. While the Government fixes definitely the trans- shipment ports for merchandise from abroad, and while they are making the necessary installations, the steamers of this line shall be allowed to call at the ports of Curacao and Trinidad, and any one of the steamers leaving Trinidad may also navigate by the channels of the Macareo and Pedernales of the river Orinoco in conformity with the formalities which by special resolution may be imposed by the minister of finance, in order to prevent contra- band and to safeguard fiscal interests ; to all which conditions the contractor agrees beforehand.
ARTICLE 13. This contract shall remain in force for fifteen years, reckoned from the date of its approbation, and may be transferred by the contractor to another person or corporation upon previous notice to the Government.
ARTICLE 14. Disputes and controversies which may arise with regard to the interpretation or execution of this contract shall be resolved by the tribunals of the Republic in accordance with the laws of the nation, and shall not in any case be considered as a motive for international reclamations.
Two copies of this contract of the same tenor and effect were made in Caracas the seventeenth day of January, 1894.
(Signed) FELICTANO ACEVEDO (Signed) EDWARD P. GANTEAUME
ADDITIONAL ARTICLE. Between the minister of the interior of the United States of Venezuela and citizen Manuel A. Sanchez, concessionnary of Mr. Ellis Grell, have agreed to modify the eighth article of the contract made on the 17th day of January of the present year for the coastal navigation between Ciudad Bolivar and Maracaibo on the following terms :
ARTICLE 8. The Government undertakes to exonerate from pay- ment of import duties the machinery, tools and articles which may be imported for the steamers, and all other materials destined for the repairs of the steamers ; while the Government fixes the points of transport and coaling ports, the contractor is hereby permitted to take coal and provisions for the crew in the ports of Curacao and Trinidad.
Caracas, 10th May, 1894.
Signed : JOSE R. NUNEZ Signed: M. A SANCHEZ
THE ORINOCO STEAMSHIP COMPANY CASE 261
And whereas the mentioned executive decree of October 5th, 1900, reads as follows :
DECREE
ARTICLE 1. The decree of the 1st of July, 1893, which pro- hibited the free navigation of the Macareo, Pedernales, and other navigable waterways of the river Orinoco is abolished.
ARTICLE 2. The minister of interior relations is charged with the execution of the present decree.
Now whereas in regard to the said contract it has to be remarked that in almost all arguments, documents, memorials, etc., presented on behalf of the claimant it is designated as a concession for the exclu- sive navigation of the Orinoco River by the Macareo or Pedernales channels, whilst in claimant's memorial it is even said that "the chief and indeed only value of this contract was the exclusive right to navigate the Macareo and Pedernales channels of the river Orinoco, and that, according to claimant, this concession of exclusive right was annulled by the aforesaid decree, and that it is for the losses that were the consequence of the annullment of this concession of exclusive right that damages were claimed.
The main question to be examined is whether the Venezuelan Gov- ernment by said contract gave a concession for the exclusive naviga- tion of said channels of said river, and whether this concession of exclusive navigation was annulled by said degree.
And whereas the contract shows that Ellis Grell (the original con- tractor) pledged himself to establish and maintain in force navigation by steamers between Ciudad Bolivar and Maracaibo, touching at the ports of La Vela, Puerto Cabello, La Guaira, Guanta, Puerto Sucre, and Carupano, and to fulfil the conditions mentioned in Articles 2, 3, 4 and 5, whilst the Venezuelan Government promised to grant to Grell the benefits, concessions and exemptions outlined in Articles 7, 8, 9, 11 and 12, and in Article 6 pledges itself to concede to no other line of steamers any of the benefits, concessions, and exemptions contained in the contract, the main object of the contract appears to be the assur- ance of a regular communication by steamer from Ciudad Bolivar to Maracaibo, touching the duly established Venezuelan ports between those two cities. For the navigation between these duly established ports no concession or permission was wanted, but in compensation to Grell's engagement to establish and maintain in force for fifteen years (Article 13) this communication, the Venezuelan Government ac-
262 THE HAGUE COURT REPORTS
corded him some privileges which it undertook to grant to no other line of steamers.
Whereas therefore this contract in the whole does not show itself as a concession for exclusive navigation of any waters, but as a con- tract to establish a regular communication by steamers between the duly established principal ports of the Republic, the pretended conces- sion for exclusive navigation of the Macareo and Pedernales channels must be sought in Article 12 of the contract, the only article in the whole contract in which mention of them is made.
And whereas this article in the English version in claimant's memo- rial, reads as follows :
While the Government fixes definitely the transshipment ports for merchandise from abroad, and while they are making the necessary installations, the steamers of this line shall be allowed to call at the ports of Curasao and Trinidad, and any one of the steamers leaving Trinidad may also navigate by the channels of the Macareo and Pedernales of the river Orinoco, etc.,
it seems clear that the permission in this article — by which article the permission of navigating the said channels was not given to the claimant in general terms and for all its ships indiscriminately but only for the ships leaving Trinidad — would only have force for the time till the Government would have fixed definitely the transshipment ports, zvhich it might do at any moment and till the necessary installa- tions were made, and not for the whole term of the contract, which according to Article 13 would remain in force for fifteen years ;
And whereas this seems clear when reading the English version of the contract as cited in the memorial, it seems, if possible, still more evident when reading the original Spanish text of this article, of which the above-mentioned English version gives not a quite correct transla- tion, from which Spanish text reading as follows [sic.] :
ART. 12. Mientras el Gobierno fija definitivamente los puertos de trasbordo para las mercancias procedentes del extranjero, y mientras hace las necesarias instalaciones, las sera permitido a los buques de la linea, tocar en los puertos de Curagao y de Trinidad, pudiendo ademas navegar el vapor que saiga de la ultima Antilla por los canos de Macareo y de Pedernales del Rio Orinoco, previas las formalidades que por resolucion especial dictara el Ministerio de Hacienda para impedir el contraband© en resguardo de los inte- reses fiscales ; y a las cuales de antemano se somete el contratista.
THE ORINOCO STEAMSHIP COMPANY CASE 263
(The words "el vapor que saiga de la ultima Antilla," being given in the English version as "any one of the steamers leaving Trinidad.")
It can not be misunderstood that this "el vapor" is the steamer that had called at Trinidad according to the permission given for the special term that the "while" (mientras) would last; wherefore it seems impossible that the permission given in Article 12 only for the time there would exist circumstances which the other party might change at any moment could ever have been the main object, and, as is stated in the memorial, "the chief and, indeed, only value" of a con- tract that was first made for the term of fifteen years, which term later on even was prolonged to twenty-one years.
And whereas therefore it can not be seen how this contract conces- sion for establishing and maintaining in force for fifteen years a com- munication between the duly established ports of Venezuela can be called a concession for the exclusive navigation of the said channels, when the permission to navigate these channels was only annexed to the permission to call at Trinidad and would end with that permission, whilst the obligation to navigate between the ports of Venezuela from Ciudad Bolivar to Maracaibo would last ;
And whereas on the contrary all the stipulations of the contract are quite clear when holding in view the purpose why it was given, viz, to establish and maintain in force a communication between the duly established ports of Venezuela, i. e., a regular coastal service by steamers,
Because to have and retain the character and the rights of ships bound to coastal service it was necessary that the ships should navi- gate under Venezuelan flag (Article 2), that they should have a special permission to call at Curagao and Trinidad to supply themselves with coal and provisions (Article 8), which stipulation otherwise would seem without meaning and quite absurd, as no ship wants a special permis- sion of any government to call at the ports of another government, and to call at the same foreign ports for transshipment while the gov- ernment fixed definitely the transshipment ports (Article 12). In the same way during that time a special permission was necessary for the ship leaving Trinidad to hold and retain this one right of ships bound to coastal service — to navigate by the channels of Macareo and Peder- nales — which special permission would not be necessitated any longer as soon as the Government could fix definitely the Venezuelan ports that would serve as transshipment ports, because then they would per se enjoy the right of all ships bound to coastal service, viz, to navigate through the mentioned channels.
264 THE HAGUE COURT REPORTS
What is called a concession for exclusive navigation of the men- tioned channels is shown to be nothing but a permission to navigate these channels as long as certain circumstances should exist.
And whereas therefore the contract approved by decree of the 8th of June, 1894, never was a concession for the exclusive navigation of said channels of the Orinoco ; and whereas the decree which reopened these channels for free navigation could not annul a contract that never existed;
All damages claimed for the annulling of a concession for exclusive navigation of the Macareo and Pedernales channels of the Orinoco River must be disallowed.
Now whereas it might be asked if the permission to navigate by those channels, given to the steamer that on its coastal trip left Trini- dad, was not one of the "benefits, concessions and exemptions" that the Government in Article 6 promised not to concede to any other line of steamers;
It has not to be forgotten that in Article 12 the Government did not give a general permission to navigate by the said channels, but that this whole article is a temporal measure taken to save the character and the rights of coastal service, to the service which was the object of this contract, during the time the Government had not definitely fixed the transshipment ports; and that it was not an elementary part of the concession, that would last as long as the con- cession itself, but a mere arrangement by which temporarily the right of vessels bound to coastal service, viz., to navigate said channels, would be safeguarded for the vessel that left Trinidad as long as the vessels of this service would be obliged to call at this island, and that there- fore the benefit and the exemption granted by this article was not to navigate by said channels, but to hold the character and right 0Jf a coastal vessel, notwithstanding haznng called at the foreign port of Trinidad; and as this privilege was not affected by the reopening of the channels to free navigation, and the Government by aforesaid decree did not give any benefit, concession and exemption granted to this concession to any other line of steamers, a claim for damages for the reopening of the channels based on Article 6 can not be allowed. It may be that the concessionary and his successors thought that during all the twenty- one years of this concession the Government of Venezuela would not definitely fix the transshipment ports, nor reopen the channels to free navigation, and [on] those thoughts based a hope that was not fulfilled and formed a plan that did not succeed ; but it would be a strange ap- pliance of absolute equity to make the government that grants a con-
THE ORINOCO STEAMSHIP COMPANY CASE 265
cession liable for the not realized dreams and vanished "chateaux en Espagne" of inventors, promoters, solicitors and purchasers of con- cessions.
But further on — even when it might be admitted that the reopening of the channels to free navigation might furnish a ground to base a claim on (quod non) — whilst investigating the right of claimant and the liability of the Venezuelan Government, it has not to be forgotten that, besides the already-mentioned articles, the contract has another article, viz., Article 14, by which the concessionary pledges himself not to sub- mit any dispute or controversies which might arise with regard to the interpretation or execution of this contract to any other tribunal but to the tribunals of the Republic, and in no case to consider these dis- putes and controversies a motive for international reclamation, which article, as the evidence shows, was repeatedly disregarded and tres- passed upon by asking and urging the intervention of the English and United States Governments without ever going for a decision to the tribunals of Venezuela;
And as the unwillingness to comply with this pledged duty is clearly shown by the fact that the English Government called party's atten- tion to this article, and, quoting the article, added the following words, which certainly indicated the only just point of view from which such pledges should be regarded:
Although the general international rights of His Majesty's Gov- ernment are in no wise modified by the provisions of this docu- ment to which they were not a party, the fact that the company, have so far as lay in their power, deliberately contracted them- selves out of every remedial recourse in case of dispute, except that which is specified in Article 14 of the contract, is undoubtedly an element to be taken into serious consideration when they subse- quently appeal for the intervention of His Majesty's Government ;
And whereas the force of this sentence is certainly in no wise weak- ened by the remark made against it on the side of the concessionary, that "the terms of Article 14 of the contract have absolutely no con- nection whatever with the matter at issue," because "no doubt or contro- versy has arisen with respect to the interpretation and execution of the contract," but that "what has happened is this, that the Venezuelan Government has, by a most dishonest and cunningly devised trick, defrauded the company to the extent of entirely nullifying a conces- sion which it had legally acquired at a very heavy cost," whereas, on the contrary, it is quite clear that the only question at issue was
266 THE HAGUE COURT REPORTS
whether in Article 12, in connection with Article 6, a concession for exclusive navigation was given or not — ergo, a question of doubt and controversy about the interpretation;
And whereas the following words of the English Government ad- dressed to the concessionary may well be considered :
The company does not appear to have exhausted the legal reme- dies at their disposal before the ordinary tribunals of the country and it would be contrary to international practice for His Majesty's Government formally to intervene in their behalf through the diplomatic channel unless and until they should be in a position to show that they had exhausted their ordinary remedies with a result that a prima facie case of failure or denial of justice re- mained ;
For whereas, if in general this is the only just standpoint from which to view the right to ask and to grant the means of diplomat ical inter- vention and in consequence casu quo of arbitration, how much the more where the recourse to the tribunals of the country was formally pledged and the right to ask for intervention solemnly renounced by contract, and where this breach of promise was formally pointed to by the government whose intervention was asked;
Whereas therefore the question imposes itself, whether absolute equity ever would permit that a contract be willingly and purposely trespassed upon by one party in view to force its binding power on the other party;
And whereas it has to be admitted that, even if the trick to change a contract for regular coastal service into a concession for exclusive navigation succeeded (quod non), in the face of absolute equity the trick of making the same contract a chain for one party and a screw-press for the other never can have success :
It must be concluded that Article 14 of the contract disables the con- tracting parties to base a claim on this contract before any other tribunal than that which they have freely and deliberately chosen, and to parties in such a contract must be applied the words of the Hon. Mr. Finley, United States Commissioner in the Claims Commission of 1889 : "So they have made their bed and so they must lie in it."
But there is still more to consider.
For whereas it appears that the contract originally passed with Grell was legally transferred to Sanchez and later on to the English company "The Orinoco Shipping and Trading Company Limited," and on the 1st day of April, 1902, was sold by this company to the Ameri- can company, the claimant ;
THE ORINOCO STEAMSHIP COMPANY CASE 267
But whereas Article 13 of the contract says that it might be trans- ferred to another person or corporation upon previous notice to the Government, whilst the evidence shows that this notice has not been previously (indeed ever) given; the condition on which the contract might be transferred not being fulfilled, the "Orinoco Shipping and Trading Company Limited" had no right to transfer it, and this transfer of the contract without previous notice must be regarded as null and utterly worthless ;
Wherefore, even if the contract might give a ground to the above- examined claim to "The Orinoco Shipping and Trading Company Limited" (once more quod non), the claimant company as quite alien to the contract could certainly never base a claim on it.
For all which reasons every claim of the Orinoco Steamship Com- pany against the Republic of the United States of Venezuela for the annulment of a concession for the exclusive navigation of the Macareo and Pedernales channels of the Orinoco has to be disallowed.
As for the claim for 100,000 bolivars, or $19,219.19, overdue on a transaction celebrated on May 10th, 1900, between the Orinoco Ship- ping and Trading Company Limited and the Venezuelan Government :
Whereas these 100,000 bolivars are those mentioned in letter B, of Article 2 of said contract, reading as follows:
(B) One hundred thousand bolivars (100,000), which shall be paid in accordance with such arrangements as the parties hereto may agree upon on the day stipulated in the decree [of the] 23d of April, ultimo, relative to claims arising from damages caused during the war, or by other case whatever ;
And whereas nothing whatever of any arrangement, in accordance with which it was stipulated to pay, appears in the evidence before the commission, it might be asked if, on the day this claim was filed, this indebtedness was proved compellable;
Whereas further on, in which way ever \sic.] this question may be decided, the contract has an Article 4, in which the contracting parties pledged themselves to the following: "All doubts and controversies which may arise with respect to the interpretation and the execution of this contract shall be decided by the tribunals of Venezuela and in conformity with the laws of the Republic, without such mode of set- tlement being considered motive of international claims," whilst it is shown in the diplomatic correspondence brought before the commis- sion on behalf of claimant, that in December, 1902, a formal petition to make it fan] international claim was directed to the Government of
268 THE HAGUE COURT REPORTS
the United States of America without the question having been brought before the tribunals of Venezuela, which fact certainly constitutes a flagrant breach of the contract on which the claim was based ;
And whereas, in addition to everything that was said about such clauses here above it has to be considered what is the real meaning of such a stipulation ;
And whereas when parties agree that doubts, disputes, and contro- versies shall only be decided by a certain designated third [person], they implicitly agree to recognize that there properly shall be no claim from one party against the other, but for what is due as a result of a decision on any doubts, disputes or controversies by that one desig- nated third fperson] ; for which reason, in addition to everything that was said already upon this question heretofore, in questions on claims based on a contract wherein such a stipulation is made absolute equity does not allow to recognize such a claim between such parties before the conditions are realized, which in that contract they themselves made conditions sine qua non for the existence of a claim ;
And whereas further on — even in the case the contract did not con- tain such a clause, and that the arrangements, in accordance to which it was stipulated to pay were communicated to and proved before this commission — it ought to be considered that if there existed here a recognized and compellable indebtedness, it would be a debt of the Government of Venezuela to the Orinoco Shipping and Trading Com- pany;
For whereas it is true that evidence shows that on the 1st of April, 1902, all the credits of that company were transferred to the claimant company, it is not less true that, as shown by evidence, this transfer was never notified to the Government of Venezuela ;
And whereas according to Venezuelan law, in perfect accordance with the principles of justice and equity recognized and proclaimed in the codes of almost all civilized nations, such a transfer gives no right against the debtor when it was not notified to or accepted by that debtor ;
And whereas here it can not be objected that according to the pro- tocol no regard has to be taken of provisions of local legislation, because the words "the commissioners or, in case of their disagree- ment, the umpire shall decide all claims upon a basis of absolute equity, without regard to objections of a technical nature, or of the provisions of local legislation," clearly have to be understood in the way that questions of technical nature or the provisions of local legis- lation should not be taken into regard when there were objections
THE ORINOCO STEAMSHIP COMPANY CASE 269
against the rules of absolute equity; for, in case of any other inter- pretation, the fulfilling of the task of this commission would be an impossibility, as the question of American citizenship could never be proved without regard to the local legislation of the United States of America, and this being prohibited by the protocol, all claims would have to be disallowed, as the American citizenship of the claimant would not be proved; and as to technical questions it might then be maintained (as was done in one of the papers brought before this com- mission on behalf of a claimant in one of the filed claims) that the question whether there was a proof that claimant had a right to a claim was a mere technical question ;
And whereas, if the provisions of local legislation far from being objections to the rules of absolute equity are quite in conformity with those rules, it would seem absolutely in contradiction with this equity not to apply its rules, because they were recognized and proclaimed by the local legislation of Venezuela;
And whereas, the transfer of credits from "The Orinoco Shipping and Trading Company" to "The Orinoco Steamship Company" neither was notified to, or accepted by the Venezuelan Government, it can not give a right to a claim on behalf of the last-named company against the Government of Venezuela:
For all which reasons the claim of the Orinoco Steamship Company, Limited, against the Government of Venezuela, based on the transac- tion of May 10th, 1900, has to be disallowed.
In the next place the company claims $147,038.79, at which sum it estimates the damages and losses sustained during the last revolution, including services rendered to the Government of Venezuela.
Now, whereas this claim is for damages and losses suffered and for services rendered from June 1900, whilst the existence of the com- pany only dates from January 31st, 1902, and the transfer of the credits of "the Orinoco Shipping and Trading Company, Limited/' to claim- ant took place on the 1st of April of this same year, it is clear from what heretofore was said about the transfer of these credits, that all items of this claim, based on obligations originated before said April 1st, 1902, and claimed by claimant as indebtedness to the afore-named company and transferred to claimant on said April 1st, have to be dis- allowed as the transfer was never notified to or accepted by the Vene- zuelan Government. As to the items dating after the 1st of April, 1902, in the first place the claimant claims for detention and hire of the steamship Masparro from May 1st to September 18th, 1902 (141 days), at 100 pesos daily, = 14,100 pesos, and for detention and hire of
270 THE HAGUE COURT REPORTS
the steamship Socorro from March 21st to November 5th, 1902 (229 days), 22,900 pesos, together 37,000 pesos, equal to $28,461.53;
And whereas it is proved by evidence that said steamers have been in service of the National Government for the time above stated ;
And whereas nothing in the evidence shows any obligation on the part of the owners of the steamers to give this service gratis, even if it were in behalf of the commonwealth ;
Whereas therefore a remuneration for that service is due to the owners of these steamers :
The Venezuelan Government owes a remuneration for that service to the owners of the steamers;
And whereas these steamers, by contract of April 1st, 1902, were bought by claimant, and claimant therefore from that day was owner of the steamers :
This remuneration from that date is due to claimant.
And whereas in this case it differs [sic.] not that the transfer of the steamers was not notified to the Venezuelan Government, as it was no transfer of a credit, but as the credit was born after the transfer, and as it was not in consequence of a contract between the Government and any particular person or company, but, as evidence shows, because the Government wanted the steamers' service in the interest of its cause against revolutionary forces ; and whereas for this forced deten- tion damages are due, those damages may be claimed by him who suf- fered them, in this case the owners of the steamers ;
And whereas the argument of the Venezuelan Government, that it had counter-claims, can in no wise affect this claim, as those counter- claims the Venezuelan Government alludes to, and which it pursues before the tribunals of the country, appear to be claims against "The Orinoco Shipping and Trading Company," and not against claimant;
And whereas it differs not whether claimant, as the Government affirms and as evidence seems clearly to show, if not taking part in the revolution, at all events favored the revolutionary party, because the ships were not taken and confiscated as hostile ships, but were claimed by the Government, evidence shows, because it wanted them for the use of political interest, and after that use were returned to the own- ers : For all these reasons there is due to claimant from the side of the Venezuelan Government, a remuneration for the service of the steamers Masparro and Socorro, respectively, from May first to September 18th, 1902 (141 days), and from April 1st to November 5th, 1902 (219 days, together 360 days) ;
THE ORINOCO STEAMSHIP COMPANY CASE 271
And whereas, according to evidence since 1894 these steamers might be hired by the Government for the price of 400 bolivars, or 100 pesos, daily, this price seems a fair award for the forced detention :
Wherefore for the detention and use of the steamers Masparro and Socorro the Venezuelan Government owes to claimant 36,000 (thirty- six thousand) pesos, or $27,692.31.
Further on claimant claims $2,520.50 for repairs to the Masparro and $2,932.98 for repairs to the Socorro, necessitated, as claimant assures, by the ill usage of the vessels whilst in the hands of the Ven- ezuelan Government.
Now whereas evidence only shows that after being returned to claimant the steamers required repairs at this cost, but in no wiV that those repairs were necessitated by ill usage on the side of the Government ;
And whereas evidence does not show in what state they were received and in what state they were returned by the Government ;
And whereas it is not proved that in consequence of this use by the Government they suffered more damages than those that are the consequence of common and lawful use during the time they were used by the Government, for which damages in case of hire the Gov- ernment would not be responsible;
Where the price for which the steamers might be hired is allowed for the use, whilst no extraordinary damages are proved, equity will not allow to declare the Venezuelan Government liable for these repairs :
Wherefore this item of the claim has to be disallowed.
Evidence in the next place shows that, on May 29 and May 31, 1902, 20 bags of rice, 10 barrels potatoes, 10 barrels onions, 16 tins lard, and two tons coal were delivered to the Venezuelan authorities on their demand on behalf of the Government forces, and for these provisions, as expropriation for public benefit, the Venezuelan Government will have to pay ;
And whereas the prices that are claimed, viz., $6 for a bag of rice, $5 for a barrel [of] potatoes, $7 for a barrel [of] onions, $3 for a tin [of] lard, and $10 for a ton [of] coal, when compared with the market prices at Caracas, do not seem unreasonable, the sum of $308 will have to be paid for them.
As for the further $106.60 claimed for provisions and ship stores, whereas there is given no proof of these provisions and stores being taken by or delivered to the Government, they cannot be allowed.
272 THE HAGUE COURT REPORTS
For passages since April 1st, 1902, claimant claims $224.62, and whereas evidence shows that all these passages were given on request of the Government, the claim has to be admitted, and whereas the prices charged are the same that formerly could be charged by the "Orinoco Shipping and Trading Company," these prices seemed equitable ;
Wherefore, the Venezuelan Government will have to pay on this item the sum of $224.62.
As to the expenses caused by stoppage of the steamer Bolivar at San Felix when Ciudad Bolivar fell in the hands of the revolution —
Whereas this stoppage was necessitated in behalf of the defense of the Government against revolution ;
And whereas no unlawful act was done nor any obligatory act was neglected by the Government, this stoppage has to be regarded, as every stoppage of commerce, industry and communication during war and revolution, as a common calamity that must be commonly suffered and for which government can not be proclaimed liable.
Wherefore, this item of the claim has to be disallowed.
And now as for the claim of $61,336.20 for losses of revenue from June to November, 1902, caused by the blockade of the Orinoco :
Whereas a blockade is the occupation of a belligerent party on land and on sea of all the surroundings of a fortress, a port, a roadstead and even [of] all the coasts of its enemy, in order to prevent all com- munication with the exterior, with the right of "transient" occupation until it puts itself into real possession of that port of the hostile terri- tory, the act of forbidding and preventing the entrance of a port or a river on [its] own territory in order to secure internal peace and to prevent communication with the place occupied by rebels or a revolu- tionary party can not properly be named a blockade, and would only be a blockade when the rebels and revolutionists were recognized as a belligerent party;
And whereas in absolute equity things should be judged by what they are and not by what they are called, such a prohibitive measure on [its] own territory can not be compared with blockade of a hostile place, and therefore the same rules can not be adopted ;
And whereas the right to open and close, as a sovereign on its own territory, certain harbors, ports and rivers in order to prevent the tres- passing of fiscal laws is not and could not be denied to the Venezuelan Government, much less this right can be denied when used in defense not only of some fiscal rights, but in defense of the very existence of the Government ;
And whereas the temporary closing of the Orinoco River (the so-
THE ORINOCO STEAMSHIP COMPANY CASE 273
called "blockade") in reality was only a prohibition to navigate that river in order to prevent communication with the revolutionists in Ciudad Bolivar and on the shores of the river, this lawful act by itself could never give a right to claims for damages to the ships that used to navigate the river;
But whereas claimant does not found the claim on the closure itself of the Orinoco River, but on the fact that, notwithstanding this pro- hibition, other ships were allowed to navigate its waters and were dis- patched for their trips by the Venezuelan consul at Trinidad, whilst this was refused to claimant's ships, which fact in the brief on behalf of the claimant is called "unlawful discrimination in the affairs of neu- trals," it must be considered that whereas the revolutionists were not recognized belligerents there can not properly here be spoken of "neu- trals" and "the rights of neutrals," but that
Whereas it here properly was a prohibition to navigate ;
And whereas, where anything is prohibited, to him who held and used the right to prohibit can not be denied the right to permit in cer- tain circumstances what as a rule is forbidden,
The Venezuelan Government, which prohibited the navigation of the Orinoco, could allow that navigation when it thought proper, and only evidence of unlawful discrimination, resulting in damages to third [parties], could make this permission a basis for a claim to third parties ;
Now, whereas the aim of this prohibitive measure was to crush the rebels and revolutionists, or at least to prevent their being enforced, of course the permission that exempted from the prohibition might always be given where the use of the permission, far from endangering the aim of the prohibition, would tend to that same aim, as, for instance, in the case that the permission were given to strengthen the govern- mental forces or to provide in [for] the necessities of the loyal part of the population ;
And whereas the inculpation of unlawful discrimination ought to be proved ;
And whereas, on one side, it not only is not proved by evidence that the ships cleared by the Venezuelan consul during the period in ques- tion did not receive the permission to navigate the Orinoco in view of one of the aforesaid aims ;
But whereas, on the other side, evidence, as was said before, shows that the Government had sufficient reasons to believe claimant, if not assisting the revolutionists, at least to be friendly and rather partial to them, it can not be recognized as a proof of unlawful discrimination
274 THE HAGUE COURT REPORTS
that the Government, holding in view the aim of the prohibition and defending with all lawful measures its own existence, did not give to claimant the permission it thought fit to give to the above-mentioned ships;
And whereas therefore no unlawful act or culpable negligence on the part of the Venezuelan Government is proved that would make the Government liable for the damages claimant pretends to have suf- fered by the interruption of the navigation of the < )rinoco River ;
This item of the claim has to be disallowed.
The last item of this claim is for $25,000 for counsel fees and expenses incurred in carrying out the above-examined and decided claims ;
But whereas the greater part of the items of the claim had to be disallowed ;
And whereas in respect to those that were allowed it is in no way proved by evidence that they were presented [ ?] to and refused by the Government of the Republic of the United States of Venezuela, and whereas therefore the necessity to incur those fees and further ex- penses in consequence of an unlawful act or culpable negligence of the Venezuelan Government is not proved, this item has, of course, to be disallowed.
For all which reasons the Venezuelan Government owes to claimant :
U. S. Gold For detention and use of the steamers Masparro and Socorro,
36,000 pesos, or $27,692.31
For goods delivered for use of the Government 308.00
For passages 224.62
Together total 28,224.93
While all the other items have to be disallowed.
THE SAVARKAR CASE
between
FRANCE and GREAT BRITAIN Decided February 24, 1911
Syllabus
This case arose as the result of the escape of Savarkar, a Hindoo, who was being transported from England to India for trial on a charge of abetment of murder, and who at Marseilles on July 8, 1910, escaped to the shore from the Morea, a British merchant vessel, which was carrying him. While being pursued by Indian policemen from the vessel, he was captured by a French police officer, who returned him to the Morea, which sailed with the fugitive on board on the fol- lowing day. Subsequently, France demanded the restitution of the fugitive on the ground that his delivery to the British officers on board the vessel was contrary to the rules of international law, and, upon Great Britain's refusal to comply, the questions of law and fact in- volved were, by a compromis signed October 25, 1910,1 submitted to the arbitration of a tribunal composed of the following members of the Permanent Court of Arbitration: Auguste M. F. Beernaert of Belgium, Louis Renault of France, Gregors Gram of Norway, A. F. de Savornin Lohman of Holland and the Earl of Desart of England. The sessions began February 14, 1911, and ended February 17, 1911, the decision being rendered February 24, 1911.
The tribunal found that previously to the arrival of the Morea -it Marseilles arrangements had been made between the British and French police to prevent the escape of the fugitive, and that, although the French officer who arrested him may have been ignorant of his identity, there was no fraud or force used to obtain possession of him and the failure of the French authorities to disavow the arrest and delivery before the ship sailed might naturally have led the British police to believe that the French officer acted in accordance with in- structions or that his conduct was approved. The tribunal held that while an irregularity was committed in the arrest of Savarkar and his delivery to the British police, there is no rule of international law which imposes under these circumstances any obligation on the Power which has the custody of the prisoner to restore him because of a mistake made by the foreign agent who delivered him up.
*Post, p. 280.
276 THE HAGUE COURT REPORTS
AWARD OF THE TRIBUNAL
Award of the tribunal of arbitration in the case of Savarkar, be- tween France and Great Britain. — The Hague, February 24,
Whereas, by an agreement dated October 25th, 1910,2 the Gov- ernment of the French Republic and the Government of His Britan- nic Majesty agreed to submit to arbitration the questions of fact and law raised by the arrest and restoration to the mail steamer Morea at Marseilles, on July 8th, 1910, of the British Indian Savarkar, who had escaped from that vessel where he was in custody; and the de- mand made by the Government of the French Republic for the resti- tution of Savarkar;
The arbitral tribunal has been called upon to decide the follow- ing question:
Should Vinayak Damodar Savarkar, in conformity with the rules of international law, be restored or not be restored by His Britannic Majesty's Government to the Government of the French Republic?
Whereas, for the purpose of carrying out this agreement, the two Governments have respectively appointed as arbitrators :
His Excellency Monsieur Beernaert, Minister of State, member of the Belgian Chamber of Representatives, etc., president;
The Right Honorable, the Earl of Desart, formerly His Britannic Majesty's Procurator General;
Monsieur Louis Renault, professor at the University of Paris, Minister Plenipotentiary, Legal Adviser of the Department of For- eign Affairs;
Monsieur G. Gram, formerly Norwegian Minister of State, Pro- vincial Governor;
His Excellency, the Jonkheer A. F. de Savornin Lohman, Minis- ter of State, member of the Second Chamber of the States-General of the Netherlands.
And, further, the two Governments have respectively appointed as their agents,
The Government of the French Republic :
1Official report, p. 54. For the French text, see Appendix, p. 516. *Post, p. 280.
THE SAVARKAR CASE 277
Monsieur Andre Weiss, Assistant Legal Adviser of the Depart- ment of Foreign Affairs of the French Republic, professor of law at the University of Paris.
The Government of His Britannic Majesty :
Mr. Eyre Crowe, Counselor of Embassy, a senior clerk at the British Foreign Office.
Whereas, in accordance with the provisions of the agreement, cases, counter-cases and replies have been duly exchanged between the parties, and communicated to the arbitrators.
Whereas the tribunal met at The Hague on the 14th February, 1911.
Whereas, with regard to the facts which gave rise to the differ- ence of opinion between the two Governments, it is established that, by a letter dated June 29th, 1910, the Commissioner of the Metro- politan Police in London informed the Directeur de la Surete gen- erale at Paris, that the British-Indian Vinayak Damodar Savarkar was about to be sent to India, in order to be prosecuted for abetment of murder, etc., and that he would be on board the vessel Morea touching at Marseilles on the 7th or 8th July.
Whereas, in consequence of the receipt of this letter, the Minis- try of the Interior informed the Prefect of the Bouches-du-Rhone, by a telegram dated the 4th July, 1910, that the British police was sending Savarkar to India on board the steamship Morea. This telegram states that some "revolutionnaires hindous" [Hindu revolu- tionaries] then on the continent might take advantage of this to further the escape of this foreigner, and the Prefect was requested to take the measures necessary to guard against any attempt of that kind.
Whereas the Directeur de la Surete generate replied by a letter dated the 9th July, 1910, to the letter of the Commissioner of the Metropolitan Police, stating that he had given the necessary instruc- tions for the purpose of guarding against the occurrence of any incident during the presence at Marseilles of the said Vinayak Damodar Savarkar, on board the steamship Morea.
Whereas, on the 7th July, the Morea arrived at Marseilles. The following morning, between 6 and 7 o'clock, Savarkar, having suc- ceeded in effecting his escape, swam ashore and began to run; he was arrested by a brigadier of the French maritime gendarmerie
278 THE HAGUE COURT REPORTS
and taken back to the vessel. Three persons who had come ashore from the vessel assisted the brigadier in taking the fugitive back. On the 9th July, the Morea left Marseilles with Savarkar on board.
Whereas, from the statements made by the French brigadier to the police of Marseilles, it appears :
That he saw the fugitive, who was almost naked, get out of a porthole of the steamer, throw himself into the sea and swim to the quay;
That at the same moment some persons from the ship, who were shouting and gesticulating, rushed over the bridge leading to the shore, in order to pursue him;
That a number of people on the quay commenced to shout "Arretes-le";
That the brigadier at once went in pursuit of the fugitive and, coming up to him after running about five hundred metres, arrested him.
Whereas the brigadier declares that he was altogether unaware of the identity of the person with whom he was dealing, that he only thought that the man who was escaping was one of the crew, who had possibly committed an offense on board the vessel.
Whereas, with regard to the assistance afforded him by one of the crew and two Indian policemen, it appears from the explana- tions given on this point, that these men came up after the arrest of Savarkar, and that their intervention was only auxiliary to the ac- tion of the brigadier. The brigadier had seized Savarkar by one arm for the purpose of taking him back to the ship, and the prisoner went peaceably with him. The brigadier, assisted by the above- mentioned persons, did not relax his hold till he reached the half deck of the vessel.
The brigadier said that he did not know English.
From what has been stated, it would appear that the incident did not occupy more than a few minutes.
Whereas it is alleged that the brigadier who effected the arrest was not ignorant of the presence of Savarkar on board the vessel, and that his orders, like those of all the French police [agents] and gendarmes, were to prevent any Hindu from coming on board who had not got a ticket.
THE SAVARKAR CASE 279
Whereas these circumstances show that the persons on board in charge of Savarkar might well have believed that they could count on the assistance of the French police [agents] .
Whereas it is established that a commissaire of the French police came on board the vessel shortly after her arrival at the port, and in accordance with the orders of the Prefect, placed himself at the disposal of the commander in respect of the watch to be kept ;
That, in consequence, this commissaire was put into communi- cation with the British police officer who, with other police officers, was in charge of the prisoner;
That the Prefect of Marseilles, as appears from a telegram dated the 13th July, 1910, addressed to the Minister of the Interior, stated that he had acted in this matter in accordance with instructions given by the Siirete generate to make the necessary arrangements to prevent the escape of Savarkar.
Whereas, having regard to what has been stated, it is manifest that the case is not one of recourse to fraud or force in order to obtain possession of a person who had taken refuge in foreign ter- ritory, and that there was not, in the circumstances of the arrest and delivery of Savarkar to the British authorities and of his re- moval to India, anything in the nature of a violation of the sover- eignty of France, and that all those who took part in the matter certainly acted in good faith and had no thought of doing anything unlawful.
Whereas, in the circumstances cited above, the conduct of the brigadier not having been disclaimed by his chiefs before the morn- ing of the 9th July, that is to say, before the Morea left Marseilles, the British police might naturally have believed that the brigadier had acted in accordance with his instructions, or that his conduct had been approved.
Whereas, while admitting that an irregularity was committed by the arrest of Savarkar and by his being handed over to the British police, there is no rule of international law imposing, in circum- stances such as those which have been set out above, any obligation on the Power which has in its custody a prisoner, to restore him because of a mistake committed by the foreign agent who delivered him up to that Power.
280 THE HAGUE COURT REPORTS
For these reasons : The arbitral tribunal decides that the Govern- ment of His Britannic Majesty is not required to restore the said Vinayak Damodar Savarkar to the Government of the French Re- public.
Done at The Hague, at the Permanent Court of Arbitration, Feb- ruary 24th, 1911.
The President: A. BEERNAERT
The Secretary General: MICHIELS VAN VERDUYNEN
AGREEMENT FOR ARBITRATION
Agreement between the United Kingdom and France referring to arbitration the case of Vinayak Damodar Savarkar. — Signed at London, October 25,
The Government of His Britannic Majesty and the Government of the French Republic, having agreed, by an exchange of notes dated the 4th and 5th October, 1910, to submit to arbitration, on the one hand, the questions of fact and law raised by the arrest and restora- tion to the mail steamer Morea, at Marseilles, on the 8th July, 1910, of the Indian, Vinayak Damodar Savarkar, who had escaped from that vessel, on board of which he was in custody ; and on the other hand, the demand of the Government of the Republic with a view to the restitution to them of Savarkar;
The undersigned, duly authorized to this effect, have arrived at the following agreement:
ARTICLE 1
An arbitral tribunal, composed as hereinafter stated, shall under- take to decide the following question:
Should Vinayak Damodar Savarkar, in conformity with the rules of international law, be restored or not be restored by His Britannic Majesty's Government to the Government of the French Republic?
ARTICLE 2
The arbitral tribunal shall be composed of five arbitrators chosen from the members of the Permanent Court at The Hague. The two contracting Parties shall settle the composition of the tribunal. Each of them may choose as arbitrator one of their nationals.
Official report, p. 7. For the French text, see Appendix, p. 519.
THE SAVARKAR CASE 281
ARTICLE 3
On the 6th December, 1910, each of the high contracting Parties shall forward to the Bureau of the Permanent Court fifteen copies of its case, with duly certified copies of all documents which it proposes to put in. The Bureau will undertake without delay to forward them to the arbitrators and to each party : that is to say, two copies for each arbitrator and three copies for each party. Two copies will remain in the archives of the Bureau.
On the 17th January, 1911, the high contracting Parties will deposit in the same manner their counter-cases, with documents in support of them.
These counter-cases may necessitate replies, which must be pre- sented within a period of fifteen days after the delivery of the coun- ter-cases.
The periods fixed by the present agreement for the delivery of the cases, counter-cases, and replies may be extended by mutual agree- ment between the high contracting Parties.
ARTICLE 4
The tribunal shall meet at The Hague the 14th February, 1911.
Each party shall be represented by an agent, who shall serve as in- termediary between it and the tribunal.
The arbitral tribunal may, if it thinks necessary, call upon one or other of the agents to furnish it with oral or written explanations, to which the agent of the other party shall have the right to reply.
It shall also have the right to order the attendance of witnesses.
ARTICLE 5
The parties may employ the French or English language. The members of the tribunal may, at their own choice, make use of the French or English language. The decisions of the tribunal shall be drawn up in the two languages.
ARTICLE 6
The award of the tribunal shall be given as soon as possible, and, in any case, within thirty days following the date of its meeting at The Hague or that of the delivery of the written explanations which may have been furnished at its request. This period may, however,
282 THE HAGUE COURT REPORTS
be prolonged at the request of the tribunal if the two high contracting
Parties agree. Done in duplicate at London, October 25, 1910.
(L. s.) E. GREY
(L. s.) PAUL CAMBON
ADDITIONAL DOCUMENTS
Notes of October 25, 1910, of their Excellencies the Right Honorable Sir Edward Grey, Principal Secretary of State of His Britannic Majesty, and Mr. Paul Cambon, French Ambassador to London, supplementary to the Agreement for Arbitration of the same date.1
October 25, 1010.
YOUR EXCELLENCY: With reference to the agreement which we have concluded this day, for the purpose of submitting to arbitration certain matters in connection with the arrest and restitution of Vin- ayak Demodar Savarkar, at Marseilles, in July last, I have the honour to place on record the understanding that any points which may arise in the course of this arbitration which are not covered by the terms of the Agreement above referred to shall be determined by the pro- visions of the International Convention for the pacific settlement of International disputes signed at The Hague, on the 18th of October, 1907.
It is further understood that each party shall bear its own expenses and an equal share of the expenses of the Tribunal.
It have the honour, etc.
Signed: E. GREY
October 25,
MR. MINISTER: I have the honor to acknowledge your Excel- lency's note of this day relative to the agreement which we signed today for the purpose of submitting to arbitration certain matters con- cerning the arrest and restitution of Vinayak Damodar Savarkar, at Marseilles, July 8 last. I am authorized to confirm, with your Excel- lency, the understanding that all questions which may arise in the course of this arbitration, which are not covered by the terms of the agreement above referred to, shall be determined by the provisions
1 Official report, pp. 9, 10. For the original text of the French note, see Appen- dix, p. 520.
THE SAVARKAR CASE 283
of the Convention for the pacific settlement of international disputes signed at The Hague, October 18, 1907.
It is further understood that each party shall bear its own expenses and an equal part of the expenses of the tribunal.
Kindly accept, etc.
Signed: PAUL CAMBON
THE CANEVARO CASE
between
ITALY and PERU Decided May 3, 1912
Syllabus
The claim of the Italian Government against Peru on behalf of Napoleon, Carlos and Rafael Canevaro originated as follows: It appears that on December 12, 1880, N. de Pierola, at the time dictator of Peru, issued a decree by virtue of which there were created, under date of December 23, 1880, pay checks (bons de paiement, libramien- tos) to the order of the firm of Jose Canevaro & Sons for the sum of 77,000 pounds sterling, payable at different periods ; that these pay checks were not paid as they fell due; that in 1885, the father having died in 1883, the firm was reorganized with Jose Francisco, Cesar and Rafael Canevaro, Peruvian citizens, as copartners, forming a Peru- vian corporation; that in 1885 the Peruvian Government paid 35,000 pounds sterling on account, leaving due and outstanding to the firm the sum of 43,14Q pounds sterling; that the firm remained in existence until it was dissolved in 1900 by the death of Jose Francisco Canevaro ; and that the pay checks (bons de paiement) finally passed into posses- sion of Napoleon and Carlos Canevaro, Italian subjects, and Rafael Canevaro, whose claim to Italian nationality was contested by Peru.
Differences arose between the claimants and Peru as to whether the pay checks should be paid in coin, or in one per cent bonds in accord- ance with the provisions of the Peruvian domestic debt law of June 12, 1889, as to the amount which the claimants had a right to demand, and as to the nationality of Rafael Canevaro. Peru contended that the debt was contracted by Peru with a Peruvian corporation and that therefore its settlement was entirely a domestic matter, but, finally, on April 25, 1910, as the result of diplomatic negotiations with Italy, a compromis1 was signed, submitting the questions in dispute to a tribunal of the Permanent Court of Arbitration at The Hague com- posed of the following members: Louis Renault of France, Guido Fusinato of Italy and Manuel Alvarez Calderon of Peru. The ses- sions began April 20, 1912, and ended April 22, 1912, the decision "being rendered May 3, 1912.
The tribunal first decided the status of Rafael Canevaro. It con- sidered him as having a twofold nationality: first, by birth in Peru, and, secondly, as the child of an Italian father; but, because of his having acted as a Peruvian citizen, it held that the Government of
*Post, p. 294.
THE CANEVARO CASE 285
Peru had a right to consider him as such and to deny his status as an Italian claimant. His claim was therefore dismissed.
The tribunal found that the firm of Canevaro & Sons, reorganized in 1885 upon the death of the father, was composed of Peruvian citi- zens, so that it was Peruvian by domicile as well as by the nationality of its members, and that the firm remained in existence until it was dissolved in 1900 by the death of Jose Francisco Canevaro. The debt was therefore domestic in its origin and subject to the laws of Peru, especially to the act of 1889, which Canevaro & Sons had recognized by attempting to avail itself of some of the provisions thereof. Napoleon and Carlos Canevaro urged their Italian nationality as a reason why the act of 1889 should not affect their claim, but the tribunal held that their title was derivative and could be neither bet- ter nor worse than the right originally acquired by the firm through which they directly or indirectly claimed. Hence, instead of the sum of 43,143 pounds sterling, they were only entitled to the bonds issued in 1889 to meet this indebtedness. The decision as to the amount of the claim was settled by the tribunal's holding that it should be paid in bonds. As to the question of interest, the tribunal decided that the bonds or pay checks (libramientos) of 1880 bore four per cent until due, and after this period until payment the legal rate of six per cent. But, as the act of 1889 provided one per cent interest, the tribunal allowed four per cent upon the original outstanding indebtedness until the date of maturity, six per cent after that date until the first of January, 1889, and one per cent upon the bonds issued in 1889 until July 31, 1912, at which date the bonds were to be paid. The tribunal, however, provided further that payment might be delayed until the first of January, 1913, but that from the first of August, 1912, to the first of January, 1913, the debt should bear six per cent interest.
AWARD OF THE TRIBUNAL
Award of the arbitral tribunal charged with passing on tJie differ- ence between Italy and Pent in regard to the claim of the Canevaro brothers. — The Hague, May 3, ipi.?.1
Whereas, by a compromis dated April 25, 19 10,2 the Italian and Peruvian Governments agreed to submit the following questions to arbitration :
Should the Peruvian Government pay in cash, or in accordance with the provisions of the Peruvian law of June 12, 1889, on the domestic debt, the bills of exchange (cambiali, libramientos) now in
iTransl.ition. For the original French text, see Appendix, p. 522. *Post, p 294,
286 THE HAGUE COURT REPORTS
the possession of the brothers Napoleon, Carlos, and Rafael Cane- varo, which were drawn by the Peruvian Government to the order of the firm of Jose Canevaro & Sons for the sum of 43,140 pounds sterling, plus the legal interest on the said amount?
Have the Canevaro brothers a right to demand the total amount claimed?
Has Count Rafael Canevaro a right to be considered as an Italian claimant?
Whereas, pursuant to this compromis the following persons were designated as arbitrators:
Mr. Louis Renault, Minister Plenipotentiary, member of the In- stitute, professor in the Faculty of Law at the University of Paris and at the School of Political Sciences, Counselor for the Ministry of Foreign Affairs, president;
Mr. Guido Fusinato, Doctor of Law, former Minister of Public Instruction, honorary professor of international law at the Univer- sity of Turin, Deputy, Counselor of State ;
His Excellency Mr. Manuel Alvarez Calderon, Doctor of Law, professor at the University of Lima, Envoy Extraordinary and Minister Plenipotentiary of Peru at Brussels and Berne.
Whereas, the two Governments have respectively appointed as counsel :
The Royal Italian Government: Professor Vittorio Scialoja, Senator of the Kingdom of Italy and as assistant counsel, Count Giuseppe Francesco Canevaro, Doctor of Law ;
The Peruvian Government : Mr. Manuel Maria Mesones, Doctor of Law, attorney.
Whereas, in accordance with the terms of the compromis, the memorials and counter-memorials have been duly exchanged be- tween the parties and communicated to the arbitrators;
Whereas, the tribunal met at The Hague on April 20, 1912.
Whereas, in order to simplify the following statement it is deemed best to pass first upon the third question contained in the compromis, that is, the question of the status of Rafael Canevaro;
Whereas, according to Peruvian legislation (Article 34 of the Constitution), Rafael Canevaro is a Peruvian by birth because born on Peruvian territory,
THE CANEVARO CASE
287
And, whereas, on the other hand, according to Italian legislation (Article 4 of the Civil Code) he is of Italian nationality because born of an Italian father;
Whereas, as a matter of fact, Rafael Canevaro has on several oc- casions acted as a Peruvian citizen, both by running as a candidate for the Senate, where none are admitted except Peruvian citizens and where he succeeded in defending his election, and, particularly, by accepting the office of Consul General for the Netherlands, after having secured the authorization of both the Peruvian Government and the Peruvian Congress;
Whereas, under these circumstances, whatever Rafael Canevaro' s status as a national may be in Italy, the Government of Peru has a right to consider him a Peruvian citizen and to deny his status as an Italian claimant.
Whereas, the debt which gave rise to the claim submitted to the tribunal is the result of a decree of the dictator Pierola of December 12, 1880, by virtue of which there were issued, under date of the 23d of the same month, pay checks (bons de paiement, libramientos) to the order of the firm of Jose Canevaro & Sons for the sum of 77,000 pounds sterling, payable at different periods ;
Whereas, these "checks" were not paid at the periods set, which periods were coincident with the period of enemy occupation ;
Whereas, a payment on account of 35,000 pounds sterling was made at London in 1885, leaving a debt of 43,140 pounds sterling, regarding which a decision is necessary ;
Whereas, it is shown from the facts of the case that the business firm of Jose Canevaro & Sons, established at Lima, was reorganized in 1885, after the death of its founder in 1883;
Whereas the firm name of Jose Canevaro & Sons was preserved though, in reality, as shown by the act of liquidation of February 6, 1905, the company was composed of Jose Francisco and Cesar Canevaro, whose Peruvian nationality was never contested, and of Rafael Canevaro, whose Peruvian nationality, in accordance with Peruvian law, has just been recognized by the tribunal ;
Whereas, this company, whose firm name was Peruvian and whose members were of Peruvian nationality, continued to exist until the death of Jose Francisco Canevaro, in 1900.
288 THE HAGUE COURT REPORTS
Whereas, it was during the existence of this company that the Peruvian laws of October 26, 1886, June 12, 1889, and December 17, 1898, were enacted, prescribing the gravest measures with re- gard to the debts of the Peruvian Government, which measures appeared to be necessary owing to the deplorable condition to which Peru had been reduced by the evils of foreign and civil war;
Whereas, it is not the place of the tribunal to pass judgment upon the provisions themselves of the laws of 1889 and 1898, which pro- visions were indeed very severe upon the creditors of Peru, but as these provisions were, without doubt, forced upon Peruvian indi- viduals and corporations alike, the tribunal can but recognize the fact.
Whereas, on September 30, 1890, the Canevaro company, through its representative, Giacometti, applied to the Senate for payment of the 43,140 pounds sterling which had, according to it, been fur- nished to meet the needs of the war;
Whereas, on April 9, 1891, in a letter addressed to the President of the Tribunal of Accounts, Giacometti assigned a triple origin to the debt : a balance due the Canevaro firm from the Government in payment of armaments bought in Europe during the war; drafts drawn by the Government against a consignment of guano to the United States, protested and then paid by Jose Francisco Canevaro ; money furnished for the army by General Canevaro;
Whereas, also, on April 1, 1891, the said Giacometti, addressing the President of the Tribunal of Accounts, had invoked Article 14 of the law of June 12, 1889, which he said Congress had passed "for the most patriotic purposes," in order to obtain a settlement of the debt;
Whereas, the representative of the Canevaro firm had at first assigned a manifestly erroneous origin to the debt, it having by no means been a question of supplies furnished or advances made in view of the war against Chile, but, as was recognized later on, solely a question of the repayment of previous drafts which, drawn by the Peruvian Government, had been protested and then paid by the Canevaro firm ;
Whereas, this is the standpoint from which the matter should be examined.
THE CANEVARO CASE 289
Whereas, the Canevaro firm acknowledged in 1890 and 1891 that it was subject to the law on domestic debt, and merely sought to place itself in a position to take advantage of a favorable provision of this law instead of submitting to the common fate of the cred- itors;
Whereas, its claim does not come within the provisions of Article 14 of said law, which it invoked, as above stated; and whereas, this case is not a question of a deposit received by the Government, nor of bills of exchange drawn upon the Government, accepted by it, and acknowledged to be lawful by the "present" Government, but 6f an operation connected with accounts, being not for the purpose of procuring resources for the Government, but for the purpose of settling a previous debt;
Whereas, the Canevaro claim does, on the contrary, come within the very comprehensive terms of Article 1, No. 4, of the law which mentions pay orders (libramicntos) , bonds (bons), checks, bills and other money orders issued by the national bureaus up to January, 1880 ; and whereas, we may, as a matter of fact, offer the objection that this phrase [up to January, 1880] would seem to exclude the Canevaro claim, which is of December 23, 1880; nevertheless it is important to remark that this limitation as to date was for the pur- pose of excluding claims arising from acts of the dictator Pierola, in accordance with the law of 1886, which declared all acts of the lat- ter void; and whereas, thus construing literally the provision in question, the Canevaro claim could not be invoked on any score, even to obtain the slight portion allowed by the law of 1889;
But whereas, on the one hand, it appears from the circumstances and from the terms of the compromis that the Peruvian Government itself acknowledges that the annulment prescribed by the law of 1886 does not apply to the Canevaro claim ; and, on the other hand, that the annulment prescribed by the Pierola decree would leave in- tact the previous claim arising from the payment of the drafts;
And that thus the claim arising from the bonds of 1880, delivered to the Canevaro firm, must be considered as coming within the category of the evidences of indebtedness enumerated in Article 1, No. 4, of the law ;
And whereas, it has been held, in a general way, that the law of 1889 ought not to apply to the Canevaro claim, and that the claim
290 THE HAGUE COURT REPORTS
ought not to be considered as falling within the domestic debt, since its very characteristics precluded this, the certificates of indebtedness being to order, made payable in pounds sterling, and belonging to Italians ;
Whereas, apart from the nationality of the individuals, it is un- derstood that financial measures adopted within a country do not affect transactions entered into abroad by means of which the Gov- ernment has made a direct appeal for foreign credit ; this, however, is not the case here; in the matter of the bills issued in December, 1880, we are clearly dealing with an arrangement of a domestic nature, with bills drawn in Lima, payable in Lima, in compensation for a payment made voluntarily in the interest of the Government of Peru;
And this is not impaired by the fact that the evidences of indebt- edness were to order and payable in pounds sterling, which fact did not prevent the Peruvian law from being applicable to the debt created and payable in the territory in which the said law prevailed ;
Whereas, the enumeration contained in Article 1, No. 4, as re- ferred to above, comprises evidences of indebtedness payable to order, and Article 5 foresees that conversions of money may be necessary ;
Whereas, finally, as has been stated before, when the financial measures which gave rise to the claim were taken, the claim be- longed to a company which was incontestably Peruvian ;
And whereas, the claim of 1880 belongs at present to three Cane- varo brothers, two of whom are certainly Italians ;
Whereas, it is justifiable. to question whether or not this circum- stance renders the law of 1889 inapplicable;
And whereas, it is unnecessary for the tribunal to consider the claim as one belonging to Italians at the time of the enactment of the law which reduced to such an extent the rights of Peruvian creditors, or to consider whether the same sacrifices could be im- posed upon foreigners as upon natives ;
But whereas, at present it is solely a question of ascertaining whether a position in which natives are placed, and from which for them there is no" escape, is radically modified when, in one way or another, foreigners are substituted for them ;
THE CANEVARO CASE 291
And whereas, such a modification could not easily be admitted, since it would be contrary to the plain proposition that an assignee has no greater rights than the assignor;
And whereas, the Canevaro brothers appear as holding the dis- puted evidences of indebtedness by virtue of an indorsement;
And whereas, there is invoked in their behalf the ordinary effect of indorsement, which is to make the bearer of a note to order the direct creditor of the debtor, enabling him to reject any exceptions which might be made against his indorser;
And whereas, if we reject the theory that, outside of negotiable paper, indorsement is a purely civil conveyance, then we must, in this instance, refuse to admit the effect of indorsement ;
And while, in reality, the date of the indorsement of the evidences of indebtedness of 1880 is not known, it is an indisputable fact that this indorsement occurred long after the paper became due; and there is therefore ground for applying the provision of the Peruvian Code of Commerce of 1902 (Article 436), according to which in- dorsement subsequent to maturity has only the force of an ordinary conveyance ;
And whereas, moreover, the rule invoked above in regard to the effect of indorsement does not prevent making exceptions against the bearer, drawn from the very nature of the paper, which he knew or ought to have known;
And whereas, it is useless to remark that the Canevaro brothers knew perfectly well the character of the papers indorsed in their behalf;
And whereas, while the Canevaro brothers can not, as possessors of the claim by virtue of an indorsement, acquire a more favorable status than that of the company from which they derived their rights, it is a question whether their status should not be different if they are regarded as heirs of Jose Francisco Canevaro, which they appear to be in a notarial declaration of February 6, 1905 ;
Whereas, as a matter of fact, there is this difference between a conveyance and an inheritance : in the latter case, the claim has not passed from one person to another by an act of pure will ;
Whereas, nevertheless, no decisive reason is found for admitting that the situation has changed by virtue of the fact that Italians succeeded a Peruvian and that the heirs have a new title which en-
292 THE HAGUE COURT REPORTS
ables them to avail themselves of the claim under more favorable conditions than the de cujus;
Whereas, it is a general rule that heirs receive property subject to the same conditions as obtained when it was in the possession of the deceased ;
Whereas, it has been maintained that the Peruvian law of 1889 on domestic debt, did not modify the obligations existing against Peru, but only gave to the administration the authority to pay its debts in a certain manner when the creditors demanded payment thereof, and that it is to the moment when payment is demanded that we should look in order to ascertain whether the exceptions specified in the law may be invoked against all persons, and especially against foreigners ;
Whereas, as the present owners of the claim are Italians, it would be proper for the tribunal to pass on the question whether the Peru- vian law of 1889 may, in spite of its exceptional character, be im- posed upon foreigners;
But whereas, this view appears at variance with the general terms and spirit of the law of 1889;
Whereas, Congress, whose acts are not here under examination, intended to settle entirely the financial situation of Peru, and sub- stitute the bonds which it issued for the old bonds ;
Whereas, this situation is not altered because some creditors apply earlier than others for the settlement of their claims ;
Whereas, this was the situation with regard to the Canevaro firm, which was Peruvian when the law of 1889 went into effect ;
And whereas, for the reasons already set forth, this situation has not been changed in law by the fact that the claim has passed into the hands of Italians by indorsement or by inheritance ;
And whereas, finally, the allegation that the Peruvian Govern- ment should indemnify the claimants for the damages occasioned them by its delay in discharging the debt of 1880, and that the damage is measured by the difference between payment in gold and payment in bonds of the consolidated debt ; and that thus the Peru- vian Government would be bound to pay in gold the sum claimed, even though it be admitted that the law of 1889 was properly applied to the indebtedness ;
THE CANEVARO CASE 293
And whereas, the tribunal considers that in following this line of reasoning it would be departing from the terms of the compromis, which stipulates that it shall decide only whether the Peruvian Gov- ernment should pay in cash or in accordance with the provisions of the Peruvian law of June 12, 1889 ;
And whereas, since the tribunal has admitted the latter alternative, the former solution should be excluded ;
And whereas, further, the tribunal is not charged with decid- ing what responsibility the Peruvian Government may have in- curred on any other score, and with inquiring as to whether the delay in payment may or may not be condoned because of the try- ing circumstances in which Peru was placed, especially in view of the fact that the question would, in reality, be one as to the responsi- bility incurred toward a Peruvian firm, the creditor when the delay occurred ;
And whereas, it is proper to estimate the amount of the Canevaro claim at the time the law of 1889 went into effect;
Whereas, it was composed primarily of the principal, amounting to 43,140 pounds sterling, to which must be added the interest which had accrued up to that time;
Whereas, the interest, which, according to the decree of Decem- ber 23, 1880, was four per cent per annum up to the respective ma- turities of the bonds delivered (delivrcs) and which was included in the amount of these bonds, should be calculated from the said maturity dates at the legal rate of six per cent (Article 1274 of the Peruvian Civil Code) up to January 1, 1889;
Whereas, we thus obtain the sum of 16,577 pounds, 2 shillings, 2 pence sterling, which must be added to the principal in order to make up the total amount to be repaid in certificates of the consoli- dated debt, yielding one per cent interest, payable in gold, from January 1, 1889, until final payment;
And whereas, according to the above decision in regard to the status of Rafael Canevaro, the tribunal is to pass judgment only in regard to his two brothers ;
And whereas, it is the duty of the tribunal to regulate the mode of executing the award :
Therefore,
294 THE HAGUE COURT REPORTS
The arbitral tribunal decides that the Peruvian Government shall, on July 31, 1912, deliver to the Italian Legation at Lima, on account of the brothers Napoleon and Carlos Canevaro :
1. In one per cent bonds of the domestic debt of 1889, the nom- inal amount of 39,811 pounds, 8 shillings, 1 penny sterling upon the surrender of two-thirds of the bonds issued on December 23, 1880, to the firm of Jose Canevaro & Sons ;
2. In gold, the sum of 9,388 pounds, 17 shillings, 1 penny ster- ling, the amount of interest at one per cent from January 1, 1889, to July 31, 1912.
The Peruvian Government may delay payment of this latter sum until January 1, 1913, provided it pays interest thereon at the rate of six per cent from August 1, 1912.
Done at The Hague, in the palace of the Permanent Court of Arbitration, on May 3, 1912.
Louis RENAULT, President
MICHIELS VAN VERDUYNEN, Secretary General
AGREEMENT FOR ARBITRATION
Protocol between Italy and Peru for the arbitration of the Canevaro claim. — Signed at Lima, April 25, /pio.1
Dr. Don Meliton F. Porras, Minister of Foreign Relations of Peru, and Count Giulio Bolognesi, Charge d'Affaires of Italy, having met at the office of the former, have agreed upon the following:
The Government of the Peruvian Republic, and the Government of His Majesty, the King of Italy, not having succeeded in reaching an agreement in regard to the claim presented by the latter on behalf of Count Napoleon, Carlos and Rafael Canevaro, for the payment of the sum of forty-three thousand, one hundred and forty pounds sterling and the legal interest thereon, which they demand from the Govern- ment of Peru,
Have resolved, in accordance with Article 1 of the general treaty of arbitration in force between the two countries, to submit this con- troversy to the Permanent Court of Arbitration at The Hague, which Court shall decide in accordance with law the following points:
*American Journal of International Law, vol. 6, Supplement, p. 212. For the original Italian and Spanish texts, see Appendix, p. 528.
THE CANEVARO CASE 295
Should the Government of Peru pay in cash, or in accordance with the Peruvian law of June 12, 1889, on the domestic debt, the bills of exchange (libramientos) now in the possession of the brothers Napo- leon, Carlos and Rafael Canevaro which were drawn by the Peruvian Government to the order of the firm of Jose Canevaro and Sons for the sum of 43,140 pounds sterling, plus the legal interest on the said amount ?
Have the Canevaro brothers a right to demand the total amount claimed ?
Has Don Rafael Canevaro a right to be considered as an Italian claimant ?
The Government of the Republic of Peru and the Government of His Majesty, the King of Italy, pledge themselves to designate, within four months from the date of this protocol, the members who are to constitute the arbitral tribunal.
Seven months after said arbitral tribunal has been organized, both Governments shall submit to the same a complete statement of the con- troversy, together with all the documents, evidence, briefs and argu- ments in the case, each Government being entitled to a period of five months in order to file its answer to the other Government, and in said answer they shall only be allowed to refer to the allegations contained in the statement of the other side.
The controversy shall then be deemed closed, unless the arbitral tribunal should require new documents, proofs, or briefs, in which case they must be presented within the term of four months from the time the arbitrator should demand the presentation of the same.
Should said documents, proofs or briefs not be presented within this period, an arbitral sentence shall be passed as if the same did not exist.
In witness whereof the undersigned put their names to the present protocol, drawn in Spanish and Italian, affixing their respective seals thereon.
Done in duplicate in Lima, the 25th day of April, 1910.
(L. S.) M. F. PORRAS
(L. S.) GlULIO BOLOGNESI
296 THE HAGUE COURT REPORTS
ADDITIONAL DOCUMENTS Notes Concerning the Formation of the Arbitral Tribunal1
MINISTRY OF FOREIGN AFFAIRS,
Lima, April 27, ipio.
SIR : There being no stipulation in the protocol submitting to arbitra- tion the claim presented against the Peruvian Government by the brothers Canevaro, in regard to the formation of the arbitral tribunal, it is a pleasure to me to propose to your Excellency that the same be made in accordance with Article 87 of the Convention for the pacific settlement of international disputes, signed at The Hague in 1907.
I reiterate to your Excellency the assurances of my highest con- sideration.
M. F. PORRAS
To COUNT GIULIO BOLOGNESI, Charge d" Affaires of Italy.
LEGATION OF His MAJESTY, THE KING OF ITALY,
Lima, April 27, ipio.
MR. MINISTER: I have the honor to acknowledge receipt of the note of your Excellency No. 18, of this date, and I am highly pleased to accept the proposal of your Excellency providing for the formation of the arbitral tribunal at The Hague to pass upon the Canevaro con- troversy, in accordance with the provisions of Article 87 of the Con- vention for the pacific settlement of international disputes signed at The Hague in 1907.
Be pleased, Mr. Minister, to accept the assurances of my highest and distinguished consideration.
GIULIO BOLOGNESI To His Excellency,
DR. MELITON F. PORRAS,
Minister of Foreign Relations.
1 American Journal of International Law, vol 6. Supplement, p. 214. For the original Spanish text, see Appendix, p. 530.
THE RUSSIAN INDEMNITY CASE
between
RUSSIA and TURKEY Decided November 11, 1912
Syllables
Article 5 of the treaty of Constantinople, concluded January 27 / February 8, 1879, between Russia and Turkey, which ended the war of 1877-78 between those two countries, stipulated that "the claims of Russian subjects and institutions in Turkey for indemnity on ac- count of damages sustained during the war shall be paid as soon as they are examined by the Russian Embassy at Constantinople and transmitted to the Sublime Porte."
The claims were duly examined by the Embassy and presented to the Turkish Government, but payments were delayed and only made under constant pressure from the Russian Government.
The claims amounted in all to 6,186,543 francs, of which sum 50,000 Turkish pounds were paid in 1884, 50,000 in 1889, 75,000 in 1893, 50,000 in 1894, and a trifle over 42,438 in 1902, leaving a balance of 1,539 Turkish pounds, which the Turkish Government deposited in the Ottoman Bank to the credit of Russia, but which the latter re- fused to receive on the ground that payment of the interest which Russia claimed for the delayed payments had not been made. The controversy over this interest was submitted by a compromis signed at Constantinople July 22/August 4, 1910,1 to the arbitration of a tribunal composed of the following: Charles fidouard Lardy, of Switzerland; Baron Michel de Taube and Andre Mandelstam, of Russia, and Herante Abro Bey and Ahmed Rechid Bey, of Turkey. Of these members, only two, viz., Lardy and de Taube, were selected from the panel of the Permanent Court. The sessions began February 15, 1911, and ended November 6, 1912, the decision being rendered November 11, 1912.
On a preliminary question raised by Turkey — that the claims were due to certain specified subjects of Russia and not to the Russian Government, and that therefore Russia as such had no standing in the court — the tribunal found that the treaty was made with Russia for the benefit of its subjects, and rejected the Turkish contention.
On the main question the tribunal decided that Turkey was respon- sible in the same manner as a private debtor for the payment of inter- est, but was only responsible after demand had been made for the payment of the principal and interest upon such principal. The tri-
iPost, p. 324.
298 THE HAGUE COURT REPORTS
bunal found that Russia had made such a demand in proper form on December 31, 1890/January 12, 1891, but that subsequently the Rus- sian Government, through its Embassy at Constantinople, repeatedly agreed to accept the balance as stated by Turkey, in which no interest was included. The tribunal considered this to be a renunciation of the claim for interest, and held that, after the principal had been paid in full to Russia or placed at its disposal, the Russian Government was, by the interpretation which had been accepted and practiced in Its name by its Embassy, estopped from reopening the question.
AWARD OF THE TRIBUNAL
Award of tlic arbitral tribunal constituted by virtue of the arbitra- tion agreement signed at Constantinople between Russia and Tur- key, July 22 /August 4, ip/o. — The Hague, November n, 1912?
By a compromis signed at Constantinople, July 22/ August 4, 19 10,2 the Imperial Government of Russia and the Imperial Otto- man Government agreed to submit to an arbitral tribunal the final decision of the following questions :
I. Whether or not the Imperial Ottoman Government must pay the Russian claimants interest-damages by reason of the dates on which the said Government made payment of the indemnities de- termined in pursuance of Article 5 of the Treaty of January 27/ February 8, 1879, as well as of the protocol of the same date?
II. In case the first question is decided in the affirmative, what should be the amount of these interest-damages?
The arbitral tribunal was composed of :
His Excellency Monsieur Lardy, Doctor of Laws, member and former president of the Institute of International Law, Envoy Ex- traordinary and Minister Plenipotentiary of Switzerland at Paris, member of the Permanent Court of Arbitration, umpire ;
His Excellency Baron Michel de Taube, Assistant Minister of Public Instruction of Russia, Councilor of State, Doctor of Laws, associate of the Institute of International Law, member of the Per- manent Court of Arbitration ;
1 American Journal of International Law, vol. 7., p. 178. For the original French text, see Appendix, p. 532. *Post, p. 324.
THE RUSSIAN INDEMNITY CASE 299
Mr. Andre Mandelstam, First Dragoman of the Imperial Em- bassy of Russia at Constantinople, Councilor of State, Doctor of International Law, associate of the Institute of International Law;
Herante Abro Bey, Licentiate in Law, Legal Counselor of the Sublime Porte; and
Ahmed Rechid Bey, Licentiate in Law, Legal Counselor of the Sublime Porte.
Mr. Henri Fromageot, Doctor of Laws, associate of the Insti- tute of International Law, advocate in the Court of Appeals of Paris, acted as agent of the Imperial Russian Government and was assisted by
Mr. Francis Rey, Doctor of Laws, Secretary of the European Commission of the Danube, in the capacity of secretary ;
Mr. fidouard Clunet, advocate in the Court of Appeals of Paris, member and former president of the Institute of International Law, acted as agent of the Imperial Ottoman Government and was assisted by
Mr. Ernest Roguin, professor of comparative legislation in the University of Lausanne, member of the Institute of International Law, in the capacity of counsel to the Ottoman Government ;
Mr. Andre Hesse, Doctor of Laws, advocate in the Court of Ap- peals of Paris, in the capacity of counsel to the Ottoman Govern- ment;
Youssouf Kemal Bey, professor in the Faculty of Law of Con- stantinople, former deputy, director of the Ottoman Commission of Juridical Studies; in the capacity of counsel to the Ottoman Gov- ernment ;
Mr. C. Campinchi, Advocate in the Court of Appeals of Paris, in the capacity of secretary to the agent of the Ottoman Government ;
Baron Michiels van Verduynen, secretary general of the Inter- national Bureau of the Permanent Court of Arbitration, acted as secretary general, and
Jonkheer W. Roell, first secretary of the International Bureau of the Court, attended to the secretariat.
After a first session at The Hague on February 15, 1911, to ar- range certain questions of procedure, the cases and counter-cases were duly exchanged by the parties and communicated to the arbi-
300 THE HAGUE COURT REPORTS
trators, who declared respectively, as well as the agents of the par- ties, that they waived the right to ask for further information.
The arbitral tribunal met again at The Hague on October 28, 29, 30, 31, November 2, 5, and 6, 1912, and after having heard the oral arguments of the agents and counsel of the parties, made the follow- ing award:
PRELIMINARY QUESTION
In view of the preliminary request of the Imperial Ottoman Gov- ernment that the claim of the Imperial Russian Government be declared inadmissible without examining the principal question, the tribunal, considering that the Imperial Ottoman Government bases this preliminary request, in its written demands, upon the fact
That the direct creditors for the principal sums adjudged to them were the Russian subjects individually, benefiting by a stipulation made in their names, either in the preliminaries of peace signed at San Stefano, February 19/March 3, 1878, or by Article 5 of the treaty of Constantinople of January 27/ February 8, 1879, or by the protocol of the same date, and that their titles in this respect were established by the designative decisions of the commission ad Iwc which met at the Russian Embassy at Constantinople, which decisions were communi- cated to the Sublime Porte;
That, under these circumstances, the Imperial Russian Gov- ernment should have proved the survival of the rights of each claimant and the identity of the persons entitled at the present time to avail themselves of these rights, especially since the transfer of certain of these rights has been reported to the Im- perial Ottoman Government;
That, even admitting that the Russian State was the only direct creditor as to the indemnities, the Imperial Russian Gov- ernment should have, nevertheless, made such proof, inasmuch as the said Government could not deny its duty to transmit to the claimants or their assigns the sums which it might obtain in the present suit as moratory interest-damages, the claimants appearing, upon this supposition, as beneficiaries of the stipula- tion made in their interest, if not as creditors.
That, however, the Imperial Russian Government furnished no proof as to the identity of the claimants or of their assigns,
THE RUSSIAN INDEMNITY CASE 301
or as to the survival of their claims (Counter-reply of Turkey, pp. 81 and 82) ;
Considering that the Imperial Russian Government maintains, on the contrary, in its written demands
That the debt specified in the treaty of 1879 is, none the less, a debt of State to State ; that it could not be otherwise as to the responsibility resulting from the failure to pay the said debt; that consequently the Imperial Russian Government alone is qualified to receipt for it, and for that reason to receive the sums to be paid to the claimants ; that, moreover, the Imperial Ottoman Government does not dispute the Russian Govern- ment's title of direct creditor of the Sublime Porte;
That the Imperial Russian Government is acting by virtue of a right which it possesses in claiming the interest-damages on account of the non-fulfilment of an engagement made with it directly ;
That it fully proves its rights by establishing the non-fulfil- ment of this engagement, which, moreover, is not disputed, and by presenting its title, which is the treaty of 1879 . . . ;
That the Sublime Porte, provided with the receipt regularly delivered to it by the Imperial Russian Government has no con- cern in the allotment of the sums distributed or to be distrib- uted by the said Government among its subjects entitled to indemnity; that this is a question of a domestic nature with which the Imperial Ottoman Government has nothing to do (Reply of Russia, pp. 49 and SO) ;
Considering that the origin of the claim goes back to a war and an international fact in the first degree ; that the source of the indem- nity is not only an international treaty but a treaty of peace and the agreements made with a view to the execution of this treaty of peace; that this treaty and these agreements were between Russia and Turkey, settling between themselves, State to State, as public and sovereign Powers, a question of international law ; that the pre- liminaries of peace included in the indemnities "which His Majesty the Emperor of Russia claims that the Sublime Porte bound itself to pay to him" the ten million roubles allowed as damages and in- terest to Russian subjects who were victims of the war in Turkey; that this condition of debt from State to State has been confirmed
302 THE HAGUE COURT REPORTS
by the fact that the claims were to be examined by a purely Russian commission ; that the Imperial Russian Government has full author- ity in the matter of conferring, collecting and distributing the in- demnities, in its capacity as sole creditor; that whether, in theory, Russia has acted by virtue of its right to protect its nationals or by some other right is a matter of little moment, since it is with the Imperial Russian Government alone that the Sublime Porte entered into or undertook the engagement the fulfilment of which is de- manded ;
Considering that the fulfilment of engagements between States, as between individuals, is the surest commentary on the effective- ness of these engagements;
That, upon the attempt of the Ottoman financial department in 1885 to impose the proportional stamp-tax required from individ- uals by the Ottoman laws, upon a receipt given by the Russian Em- bassy at Constantinople for a payment on account, Russia immedi- ately protested and maintained "that the debt was one contracted by the Ottoman to the Russian Government" . . . and "not a simple debt between individuals arising from a private engagement or con- tract" (Russian note of March IS/27, 1885, Russian memorandum, appendix No. 19, p. 19) ; that the Sublime Porte did not insist, and that in fact the two parties have constantly acted in practice, for more than fifteen years, as if Russia was the creditor of Turkey and not of private claimants;
That the Sublime Porte has made, without a single exception, all the successive payments upon the receipt alone of the Russian Em- bassy at Constantinople, acting in behalf of its Government ;
That the Sublime Porte has never asked, upon payments on ac- count, if the beneficiaries were still living or who were their assigns at the time, or according to what method the payments on account were divided among them, leaving this duty entirely to the Imperial Russian Government;
Considering that the Sublime Porte contends, in the main, in the present litigation, that it is fully released by the payments which it has, in fact, made to the Imperial Russian Government alone rep- resented by its Embassy, without the participation of the claimants;
For these reasons decides that
The preliminary request is set aside.
THE RUSSIAN INDEMNITY CASE 303
Passing then upon the main question, the arbitral tribunal ren- ders the following decision:
I IN THE MATTER OF FACT
The protocol signed at Adrianople, January 19/31, 1878, which put an end by an armistice to hostilities between Russia and Turkey, contains the following stipulation :
5. The Sublime Porte engages to indemnify Russia for the cost of the war and the losses that it has been forced to suffer. The character of this indemnity, whether pecuniary, territorial or other, will be arranged later.
Article 19 of the preliminaries of peace signed at San Stefano, February 19/March 3, 1878, is in these terms :
The war indemnities and the losses suffered by Russia which His Majesty the Emperor of Russia claims, and which the Sublime Porte has engaged to pay to him, consist of : (a) 900 million roubles, war expenses; (fc) 400 million roubles, dam- ages upon the southern coast; (c) 100 million roubles, dam- ages in the Caucasus; (d) ten million roubles, damages and in- terest to Russian subjects and institutions in Turkey; total, 1400 million roubles.
And further on:
The ten million roubles claimed as indemnity for Russian subjects and institutions in Turkey shall be paid as soon as the claims of those interested have been examined by the Russian Embassy at Constantinople and transmitted to the Sublime Porte.
At the Congress of Berlin, at the session of July 2, 1878, protocol No. 11, it was agreed that the ten million roubles in question did not concern Europe but only the two interested States, and that they would not be mentioned in the treaty between the Powers rep- resented at Berlin. Consequently the question was again taken up directly between Russia and Turkey, who stipulated, in the final
304 THE HAGUE COURT REPORTS
treaty of peace signed at Constantinople, January 27/February 8, 1879, as follows:
Article 5. The claims of Russian subjects and institutions in Turkey for indemnity on account of damages suffered during the war will be paid as soon as they are examined by the Rus- sian Embassy at Constantinople and transmitted to the Sublime Porte.
The total of these claims shall in no case exceed 26,750,000 francs.
Claims may be presented to the Sublime Porte beginning one year from the date on which ratifications are exchanged, and no claims will be admitted which are presented after the expiration of two years from that date.
The same day, January 27/February 8, 1879, in the protocol to the treaty of peace, the Russian plenipotentiary, Prince Lobanow, declared that the sum of 26,750,000 francs specified in Article 5 constitutes a maximum which the claims could probably never reach ; he adds that a commission ad hoc will be formed at the Russian Embassy to examine scrupulously the claims which are presented to it, and that, according to the instructions of his Government, an Ottoman delegate can take part in the examination of these claims.
Ratifications of the treaty of peace were exchanged at St. Peters- burg, February 9/21, 1879.
The commission established at the Russian Embassy and com- posed of three Russian officials immediately began its labors. The Ottoman commissioner generally abstained from taking part. The total losses of Russian subjects was fixed by the commission at 6,186,543 francs. This was communicated to the Sublime Porte between October 22/November 3, 1880, and January 29/February 10, 1881. The sum was not contested and the Russian Embassy made claim for the payment at the same time that it transmitted the final decisions of the commission.
On September 23, 1881, the Embassy transmitted a "petition" of the lawyer Rossolato, "special attorney of several Russian subjects" who were to receive indemnities, which petition was addressed to the Embassy and demanded that the Ottoman Government should come to an understanding with the Embassy "within eight days
THE RUSSIAN INDEMNITY CASE 305
from notification, as to the method of payment," declaring that the said Ottoman Government was "held now and henceforth respon- sible for all interest-damages, especially the moratory interest."
By a convention signed at Constantinople May 2/14, 1882, the two Governments agreed (Article 1) that the war indemnity, the amount of which was fixed at 802,500,000 francs by Article 4 of the treaty of peace of 1879 after deducting the value of the territory ceded by Turkey, should bear no interest and should be paid in one hundred annual instalments of 350,000 Turkish pounds, approxi- mately 8,000,000 francs.
On June 19/July 1, 1884, no sum having been paid for the claim- ants, the embassy "makes formal claim for full payment of the indemnities which were adjudged to Russian subjects . . .; it will be obliged, otherwise, to acknowledge their right to claim, in addition to the principal, interest proportional to the delay in the settlement of their claims."
On December 19, 1884, the Sublime Porte made a first payment on account, of 50,000 Turkish pounds, approximately 1,150,000 francs.
In 1885 the union of Bulgaria and Eastern Roumelia occurred, as well as the Serbo-Bulgarian war. Turkey made no further pay- ment on account. A reminding note having been sent in January, 1886, without result, the embassy insisted, on February 15/27, 1887. It transmitted a "petition" sent to it by Russian claimants, in which they hold the Ottoman Government "responsible for this increase of damages caused them by the delay in the payment of their in- demnities," and the Embassy adds: "Further postponements will force the Imperial Government to make claim in behalf of its nationals for interest on account of the delays in settling their claims."
Reminding notes of July and December, 1887, being without ef- fect, the Embassy complained on January 26/February 7, 1888, that Turkey has paid various debts incurred subsequent to its obli- gations to Russian claimants. It recalled the fact that "the arrears amount to the sum of about 215,000 Turkish pounds, a single pay- ment of 50,000 Turkish pounds having been made out of a total of 265,000 Turkish pounds awarded" ; it therefore requested "ur- gently . . . that the sums due Russian subjects be immediately,
306 THE HAGUE COURT REPORTS
and before every other payment, levied upon the amount paid by X . . ." (a debtor of the Imperial Ottoman Government).
On April 22, 1889, Turkey made a second payment on account, of 50,000 pounds.
On December 31, 1890/January 12, 1891, the Embassy, stating that it has been paid only 100,000 pounds out of a total of 265,000, wrote to the Sublime Porte that the delay in the settlement of this debt is causing the Russian nationals to suffer losses that are con- tinually increasing; it believes, therefore, that it is its duty to re- quest the Sublime Porte "to have immediate orders issued by the proper persons so that the sum due may be paid without delay, as well as the legal interest in regard to which (the Embassy) had the honor of notifying the Sublime Porte by its note of February IS/ 27, 1887."
In August, 1891, a further reminder was sent. In October/No- vember, 1892, the Embassy wrote "that matters can not continue indefinitely in this way" ; that "the requests of Russian subjects are becoming more and more urgent," that "it is the duty of the Em- bassy to act energetically in their behalf . . . that it is a question of an indisputable obligation and an international duty to be performed . . ." that "the Ottoman Government can no longer offer as ex- cuse the precarious state of its finances," and concluded by demand- ing a "prompt and final settlement of the debt."
April 2/14, 1893, a third instalment of 75,000 Turkish pounds was paid; the Sublime Porte, in giving notice of this payment on March 27, adds that, as to the balance, half of it will be included in the current budget and the other half in the next budget; "the question thus settled happily ends the incidents to which it had given rise." The Porte hoped, therefore, that the Embassy would be willing, because of its sincere friendly sentiments towards Tur- key, to accept definitively the tumbeki monopoly following the ex- ample of the other Powers.
On this occasion, and recalling the fact that the Imperial Rus- sian Government "has always shown itself friendly and conciliating in all its business pertaining to the financial interests of the Otto- man Empire," the Embassy acted on the 30th of the same month in accordance with the terms announced in view of the payment, and
THE RUSSIAN INDEMNITY CASE 307
consented to subject Russians engaged in the tumbeki trade in Tur- key to the newly created arrangement.
A year later, May 23/June 4, 1894, not having received another instalment, the Ambassador, after having stated the non-perform- ance of the "arrangement" to which he had "consented in order to facilitate the fulfilment of its obligation by the Ottoman Govern- ment," declared that he was "placed in a position which renders it impossible for him to accept further promises, arrangements or postponements/' and, "obliged to insist that the total of the balance due to Russian subjects, zvhich amounts to QT,OOO Turkish pounds, be, without further delay, paid to the Embassy. . . . Recent finan- cial operations have just placed at the disj>osal (of the Sublime Porte) large sums."
On October 27 of the same year, 1894, an instalment of 50,000 Turkish pounds was paid, and the Sublime Porte wrote, as early as the third of the same month, to the Embassy : "As to the balance of 41,000 Turkish pounds, the Ottoman Bank will guarantee pay- ment in the near future."
In 1896, there was an exchange of correspondence between the Sublime Porte and the Embassy as to whether the revenues upon which the Ottoman Bank was to levy the balance were not already pledged to Russia for payment of the war indemnity, properly so- called, or whether that portion of the revenues over and above the annuity affected by the war indemnity could not be used to indem- nify Russian subjects who were victims of the events of 1877-8. In the course of this correspondence, the Sublime Porte pointed out, in the notes which it addressed to the Embassy on February 1 1 and May 28, 1896, that the balance due amounted to the sum of 43,978 Turkish pounds.
From 1895 to 1899, serious events occurring in Asia Minor obliged Turkey to seek an extension in behalf of the Ottoman Bank, at its request; the insurrection of the Druses, the insurrection in Crete which was followed by the Graeco-Turkish war of 1897, and insurrections in Macedonia, caused Turkey repeatedly to mobilize troops and even armies.
For three years no correspondence was exchanged and when it was resumed the Sublime Porte, in notes it addressed to the Em-
308 THE HAGUE COURT REPORTS
bassy, July 19, 1899, and July 5, 1900, again specified 43,978 Turkish pounds as the amount of the balance of the indemnities. On its part, the Embassy, in its notes of April 25/May 8, 1900, and March 3/16, 1901, specified the same figure, but complained that the orders given in various provinces "for the payment of the 43,978 Turkish pounds, the amount of the balance of the indemnity due Russian subjects," have not been carried out, and that the Ottoman Bank has paid nothing; it urgently requests the Sublime Porte kindly to give categorical orders to the proper person for the payment, without further delay, of the above-mentioned sums."
After the Sublime Porte had announced in May, 1901, that the Department of Finance had been urged to settle the balance of the indemnity during the course of the month, the Ottoman Bank at last advised the Russian Embassy on February 24 and May 26, 1902, that it had received and was holding at the disposal of the Embassy 42,438 Turkish pounds of the balance of 43,978 pounds.
The Embassy in acknowledging receipt of this notice two months later, June 23/July 6, 1902, remarked to the Sublime Porte, "that the Imperial Ottoman Government has taken more than twenty years to liquidate, and incompletely at that, a debt the immediate settlement of which was required from every point of view, a bal- ance of 1,539 Turkish pounds still remaining unpaid. Referring, therefore, to its notes of September 23, 1881, February 15/27, 1887, and December 31, 1890/January 12, 1891, in regard to the interest to run on the said debt, remaining so long in suspense," the Embassy transmitted a petition in which the claimants demand, in substance, compound interest at \2% from January 1, 1881, to March 15, 1887, and at 9% from the latter date, when the legal rate of interest was reduced by an Ottoman law. The sum claimed by the petitioners amounted in the spring of 1902 to some twenty mil- lion francs on an original principal of about 6,200,000 francs. The note concluded as follows :
The Imperial Embassy is pleased to believe that the Sublime Porte will not hesitate to admit in principle the just grounds for the claim set forth in this petition. In case, however, the Sublime Porte should raise objections to the amount of the sum claimed by the Russian subjects, the Imperial Embassy
THE RUSSIAN INDEMNITY CASE 309
sees no reason why examination of the details should not be deferred to a commission composed of Russian and Ottoman delegates.
The Sublime Porte replied on the 17th of the same month, July, 1902, that Article 5 of the treaty of peace of 1879 and the protocol of the same date do not provide for interest, and that in the light of the diplomatic negotiations which have taken place on the sub- ject, it was far from expecting that the claimants would make such demands at the last moment, the effect of which would be to re- open a question which was happily closed. The Embassy replied on February 3/16, 1903, insisting "upon payment of the interest- damages claimed by its subjects. Only the amount of the damages could be a matter for investigation." In reply to a reminding note dated August 2/15, 1903, the Sublime Porte maintained its point of view, declaring itself, however, willing to submit the question to arbitration at The Hague, in case the claim should be insisted upon.
At the end of four years the Embassy accepted this suggestion by a note of March 19/April 1, 1908.
The arbitration agreement was signed at Constantinople, July 22/August 4, 1910.
As to the small sum of 1,539 Turkish pounds, it was, in Decem- ber, 1902, placed by the Ottoman Bank at the disposal of the Rus- sian Embassy, which refused it, and it remains deposited at the disposal of the Embassy.
II
IN THE MATTER OF LAW
1. The Imperial Russian Government bases its demand upon "the responsibility of States for the non-payment of pecuniary debts" ; this responsibility implies, according to it, "obligation to pay interest-damages and especially interest on sums unduly with- held" ; "the obligation to pay moratory interest" is "practical proof, in the matter of money debts," of the responsibility of States (Reply of Russia, pp. 27 and 51). "Failure to recognize these principles would be as contrary to the very conception of international law as it would be dangerous to the safety of peaceful relations; in fact, by declaring a debtor State irresponsible for the delay which it
310 THE HAGUE COURT REPORTS
causes its creditor, it would be admitted by that very fact that it need only follow its own whim in making payments; . . . the creditor State, on the other hand, would be obliged to resort to violence against such a contention . . . and to expect nothing from a pretended international law incapable of compelling the promiser to keep his word" (Russian Case, p. 29).
In other words, and still in the opinion of the Imperial Russian Government, "it is not a question of conventional interest, that is to say, interest arising from a particular stipulation . . ." but that "the obligation incumbent upon the Imperial Ottoman Govern- ment to pay moratory interest arises from the delay in the per- formance of the act, that is to say, the partial non-fulfilment of the stipulations of the treaty of peace; this obligation arose indeed, it is true, from the treaty of 1879, but it proceeds ex post facto from a new and accidental cause, namely, the failure of the Sublime Porte to carry out its contract as it pledged itself to do" (Russian Case, p. 29; Russian Reply, pp. 22 and 27).
2. The Imperial Ottoman Government, while admitting in ex- plicit terms the general principle of the responsibility of States in the matter of the non-fulfilment of their engagements (Counter- reply, p. 29, No. 286, note, and p. 52, No. 358), maintains, on the contrary, that in public international law moratory interest does not exist "unless expressly stipulated" (Ottoman Counter-case, p. 31, No. 83, and p. 34, No. 95) ; that a State "is not a debtor like other debtors" (ibid, p. 33, No. 90), and that, without attempting to main- tain "that no principle which is observed between individuals can be applied between States" (Ottoman Counter-reply, p. 26, No. 275), the position sui generis of the State as a public Power must be taken into account; that various legislative acts (for example, the French law of 1831, which establishes a period of five years for the outlawing of State debts; the Roman law which lays down the principle Fiscus ex suis contractibus usuras non dat, Lex 17, par. 5, Digest 22, 1) admit that the debtor State stands in a privileged position (Ottoman Counter-reply, p. 33, No. 92) ; that in admitting against a State an implied obligation, not expressly stipulated, in extending, for example, to a debtor State the principles of a formal demand for payment and its effect in private law, this State would be made a "debtor to a greater extent than it would have desired.
THE RUSSIAN INDEMNITY CASE 311
and there would be the risk of compromising the political life of the State, injuring its vital interests, upsetting its budget, prevent- ing it from defending itself against an insurrection of foreign at- tack" (Ottoman Counter-case, p. 33, No. 91).
Contingently, in case responsibility should attach to it, the Im- perial Ottoman Government concludes that this responsibility con- sists solely in moratory interest, that interest being due only from the date of the regular formal demand for payment (Ottoman Counter-reply, pp. 71, et scq., Nos. 410, et seq.).
It presents in opposition, moreover, the exceptions of res judi- cata, of force majcure, of the gift character of the indemnities, and of the tacit or express renunciation by Russia of the benefit of the legal demand for payment.
3. The questions of law involved in the present litigation, which has arisen between States as public Powers subject to international law, and these questions being within the province of public law, the law to be applied is public international law, or the law of nations, and the parties rightly agree upon this point (Russian Case, p. 32; Ottoman Counter-case, Nos. 47 to 54, p. 18; Russian reply, p. 18; Ottoman Counter-reply, p. 17, Nos. 244 and 245).
4. The demand of the Imperial Russian Government is based upon the general principle of the responsibility of States, in sup- port of which it has cited a large number of arbitral awards.
The Sublime Porte, without disputing this general principle, contends that it is not subject to its application, but that States have the right to an exceptional and privileged position in the special case of responsibility in the matter of money debts.
It declares that the majority of the arbitral precedents cited are of no force, as they do not apply to this special category.
The Imperial Ottoman Government remarks, in support of its point of view, that in theory there is a distinction between various responsibilites, according to their origin and according to their scope. These shades of difference occur especially in the theory of responsibilities in the Roman law and in systems of law inspired by the Roman law. In the Ottoman Case attention is called to the following distinctions, some of which are classic : Responsibilities are, in the first place, divided into two categories, according as they arise from an act of violence or a quasi-act of violence, or from a
312 THE HAGUE COURT REPORTS
contract. Among contractual responsibilities there is a further dis- tinction, according as it is a question of obligations concerning a prestation of some kind other than a sum of money, or a question of prestations of a purely pecuniary nature, of a money debt properly so-called. These various categories of responsibilities are not ap- preciated in civil law in absolutely the same manner, the circum- stances giving rise to the responsibility as well as its consequences being variable. While in the matter of responsibilities arising from acts of violence no formality whatever is necessary, in the matter of contractual responsibilities a demand in due form of law is always required. While in the matter of obligations concerning a prestation other than one involving a sum of money, as likewise in the matter of acts of violence the reparation for the damage is complete (lucrum cessans and damnum emergens)t this reparation, in the matter of money debts, is restricted legally to interest on the sum due, which interest runs only from the date of the demand in due form of law. The interest-damages are called compensatory, when they are compensation for damage resulting from the act of violence or the non-fulfilment of an obligation. They are moratory interest-damages when they are caused by delay in the fulfilment of an obligation. Finally, writers call moratory interest interest legally allowed in case of delay in the payment of money debts, thus dis- tinguishing it from other interest which is sometimes added to the money valuation of damages, to fix the total amount of an indem- nity, this last being called compensatory interest.
These distinctions in civil law can be explained : in the matter of contractual responsibility one has the right to require greater promptness on the part of the other contracting party than the victim of an unforeseen act of violence could expect. In the mat- ter of money debts, the difficulty of estimating the consequences of the demand explains why the amount of the damages has been fixed legally.
The argument of the Imperial Ottoman Government consists in maintaining that in public international law special responsibility, consisting in the payment of moratory interest in case of delay in the settlement of a money debt, does not exist so far as a debtor State is concerned. The Sublime Porte does not dispute the responsibility of States if it is a question of compensatory interest, or of interest
THE RUSSIAN INDEMNITY CASE 313
that might enter into the calculation of these compensatory interest- damages. The responsibility which the Sublime Porte refuses to acknowledge is the interest which may result, in the form of inter- est for delay or moratory interest, in the restricted sense, from delay in the fulfilment of a pecuniary obligation.
It is necessary to investigate whether these various terms, these appellations invented by commentators, correspond to intrinsic dif- ferences in the very nature of law, differences essentially juridical in the conception of responsibility. The tribunal is of the opinion that all interest-damages are always reparation, compensation for culpability. From this point of view all interest-damages are com- pensatory, whatever name they may be given. Legal interest al- lowed a creditor for a sum of money from the date of the demand in due form of law is the legal compensation for the delinquency of a tardy debtor exactly as interest-damages or interest allowed in case of an act of violence, of a quasi-act of violence, of the non- fulfilment of an obligation, are compensation for the injury suffered by the creditor, the money value of the responsibility of the delin- quent debtor. Exaggeration of the consequences of civil-law dis- tinctions in responsibility is the more inadmissible because in much recent legislation there appears a tendency to lessen or abolish the mitigation which the Roman law and its derivatives admitted in the matter of responsibility as to money debts. It is certain, indeed, that all culpability, whatever may be its origin, is finally valued in money and transformed into obligation to pay; it all ends or can end, in the last analysis, in a money debt. The tribunal, therefore, can not possibly perceive essential differences between various re- sponsibilities. Identical in their origin — culpability — they are the same in their consequences — reparation in money.
The tribunal is, therefore, of the opinion that the general prin- ciple of the responsibility of States implies a special responsibility in the matter of delay in the payment of a money debt, unless the existence of a contrary international custom is proven.
The Imperial Russian Government and the Sublime Porte brought into their arguments a series of arbitral decisions, which have admitted, affirmed and sanctioned the principle of the responsi- bility of States. The Sublime Porte considers nearly all of these decisions without any bearing on the present case, and eliminates
314 THE HAGUE COURT REPORTS
even those in which the arbitrator has expressly allowed interest on sums of money. The Imperial Ottoman Government is of the opinion that in these cases it is a question of compensatory interest and sets them aside as having no bearing on the present litigation. The tribunal, for the reasons indicated above, is of the opinion, on the contrary, that there is no reason why the great analogy which exists between the different forms of responsibility should not be taken into account; this analogy appears particularly close between interest called moratory and interest called compensatory. The analogy appears to be complete between the allowance of interest from a certain date upon valuing the responsibility in money, and the allowance of interest on the principal determined by agree- ment and remaining unpaid by a delinquent debtor. The only dif- ference is that, in one case the interest is allowed by the judge, since the debt was not exigible, and in the other case the amount of the debt was determined by agreement and the interest becomes exigible automatically in case of demand in due form of law.
To weaken this close analogy, the Sublime Porte must prove the existence of a custom — of precedents in accordance with which moratory interest in the restricted sense of the word had been re- fused because it was moratory interest, — or the existence of a cus- tom derogatory, in the matter of a pecuniary debt, to the general principles of responsibility. The tribunal is of the opinion that such proof not only has not been given, but, on the contrary, the Imperial Russian Government has been able to reinforce its posi- tion by several arbitral awards in which moratory interest has been allowed to States, in some cases, it is true, with shades of difference, and to a certain extent debatable (Mexico- Venezuela, October 2, 1903. Russian Case, p. 28, and note 5 ; Ottoman Counter-case, p. 38, No. 107 ; Columbia-Italy, April 9, 1904. Russian Reply, p. 28 and note 7 ; Ottoman Counter-reply, p. 58, No. 368 ; United States- Choctaws. Russian Reply, p. 29, Ottoman Counter-reply, p. 59, No. 369; United States- Venezuela, December 5, 1885. Russian Reply, p. 28, and note 5). To these cases should be added the award made on July 2, 1881, by His Majesty the Emperor of Austria in the Mosquito affair, in the sense that the arbitrator in no wise refused moratory interest as such, but simply declared that the principal being in the nature of a gift, interest for deferred pay-
THE RUSSIAN INDEMNITY CASE 315
ment should not, in the judgment of the arbitrator, be allowed (Rus- sian Reply, p. 28, note 4; Ottoman Counter-reply, p. 55, No. 365, note).
It remains to examine the question whether the Sublime Porte has any grounds for maintaining that a debtor State is not like other debtors, that it can not be a "debtor to a greater extent than it may have wished," and that by binding it with obligations which it has not stipulated, for example, the responsibilities of a private debtor, there is the risk of compromising its finances and even its political existence.
When the tribunal has admitted that no essential differences distinguish the various responsibilities of States from each other, that all are resolved or finally may be resolved into the payment of a sum of money, and that international custom and precedents ac- cord with these principles, it must be concluded that the responsi- bility of States can be denied or admitted only in its entirety and not in part; thenceforth it would not be possible for the tribunal to declare this responsibility inapplicable in the matter of money debts without extending this inapplicability to all the other categories of responsibilities.
If a State is condemned to compensatory interest-damages be- cause of an act of violence or the non-fulfilment of an obligation, it is a debtor to a degree which it may not have voluntarily stipulated, even more so than in case of delay in the payment of a conventional money debt. As to the effects of these responsibilities upon the finances of a debtor State, they might indeed be just as serious, if not more so, if it were a question of interest-damages which the Sublime Porte calls compensatory, as when it is simply a question of moratory interest in the restricted sense of the word. More- over, however little the responsibility may imperil the existence of the State, it would constitute a case of force majcurc which could be pleaded in public international law as well as by a private debtor.
The tribunal is, therefore, of the opinion that the Sublime Porte, which has explicitly accepted the principle of the responsibility of States, has no grounds for demanding an exception to this responsi- bility in the matter of money debts by pleading its character of public Power and the political and financial consequences of this responsibility.
316 THE HAGUE COURT REPORTS
5. To determine in what this special responsibility, which is incumbent upon a State debtor for a clear and exigible conventional debt, consists, it is now necessary to examine, proceeding by analogy as in the case of the arbitral awards which have been pleaded, the general principles of public and private law in this matter, as much from the point of view of the extent of this responsibility as of the contrary exceptions.
All the private legislation of the States forming the European concert admits, as did formerly the Roman law, the obligation to pay at least interest for delayed payments as legal indemnity when it is a question of the non-fulfilment of an obligation consisting in the payment of a sum of money fixed by convention, clear and exigible, such interest to be paid at least from the date of the de- mand made upon the debtor in due form of law. Some of this legislation goes farther and considers that such demand is already made upon the debtor on the date when the debt falls due, or admits complete reparation for damages instead of simple legal interest.
If most legislation, following the example of the Roman law, re- quires an express demand in due form of law, it is because the cred- itor on his part is in default for lack of diligence inasmuch as he does not demand payment of a clear and exigible sum.
The Imperial Russian Government (Case, p. 32) itself admits, in favor of the necessity of a demand in due form of law, that, in equity, it may be expedient "not to take by surprise a debtor State liable to moratory interest, when no notice had been given to re- mind it to carry out its engagements." Writers (for example, Heffter, International Law of Europe, paragraph 94) remark that, in "the execution of a public treaty, we must proceed with modera- tion and equity, according to the maxim that we must treat others as we wish to be treated ourselves. We must, therefore, grant reasonable extensions, so that the obligated party may suffer the least possible injury. The obligated party may await the creditor's demand in due form of law before being held responsible for delay, provided it is not a question of prestations, the performance of which it expressly stipulated for a fixed time." (See also Merign- hac, Treatise on International Arbitration, Paris, 1895, p. 290.)
A number of international arbitral awards have admitted that, even when it is a question of interest-damages for deferred pay-
THE RUSSIAN INDEMNITY CASE 317
ments, there is no occasion to have it run from the date of the dam- ageable fact (United States v. Venezuela, Orinoco — Hague award of October 25, 1910, protocols, p. 59; United States v. Chile, May 15, 1863 — award of His Majesty the King of the Belgians, Leo- pold I. La Fontaine, Pasicrisie, p. 36, column 2 and page 37, col- umn 1; Germany v. Venezuela — Arrangement of May 7, 1903. Ralston & Doyle, Venezuelan Arbitrations, Washington, 1904, pp. 520 to 523; United States v. Venezuela, December 5, 1885. Moore, Digest of International Arbitrations, pp. 3545 and 3567, vol. 4, etc.).
Hence there is no occasion, and it would be contrary to equity, to assume that a debtor State is subject to stricter responsibility than a private debtor in most European legislation. Equity re- quires, as its theory indicates and as the Imperial Russian Govern- ment itself admits, that there shall be notice, demand in due form of law addressed to the debtor, for a sum which does not bear in- terest. The same reasons require that the demand in due form of law shall mention expressly the interest, and combine to set aside responsibility for more than simple legal interest.
It is seen from the correspondence submitted, that the Imperial Russian Government has expressly and in absolutely categorical terms demanded payment from the Sublime Porte of the principal and "interest," by the note of its Embassy at Constantinople, dated December 31, 1890/ January 12, 1891. Diplomatic channels are the normal and regular means of communication between States in their relations governed by international law. This demand for payment is, therefore, regular and in due form.
The Imperial Ottoman Government must, consequently, be held responsible for the interest for delayed payments from the date of the receipt of this demand in due form of law.
The Imperial Ottoman Government pleads, in case responsibility is imposed upon it, various exceptions, the scope of which remains to be examined:
6. The exception of "force majeure" cited as of the first impor- tance, may be pleaded in opposition in public as well as in private international law. International law must adapt itself to political necessities. The Imperial Russian Government expressly admits (Russian Reply, p. 33 and note 2) that the obligation of a State to
318 THE HAGUE COURT REPORTS
carry out treaties may give way "if the very existence of the State should be in danger, if the observance of the international duty is ... 'self -destructive/ "
It is incontestable that the Sublime Porte proves, by means of the exception of force majeure (Ottoman Counter-reply, p. 43, Nos. 119 to 128, Ottoman Counter-reply, p. 64, Nos. 382 to 398 and p. 87) that Turkey was, from 1881 to 1902, in the midst of finan- cial difficulties of the utmost seriousness, increased by domestic and foreign events (insurrections and wars) which forced it to make special application of a large part of its revenues, to undergo foreign control as to part of its finances, to grant even a mora- torium to the Ottoman Bank, and, in general, it was placed in a position where it could meet its engagements only with delay and postponements, and even then at great sacrifice. But it is asserted, on the other hand, that during this same period and especially fol- lowing the creation of the Ottoman Bank, Turkey was able to obtain loans at favorable rates, redeem other loans, and, finally, pay off a large part of its public debt, estimated at 350,000,000 francs (Russian Reply, p. 37). It would clearly be exaggeration to admit that the payment (or obtaining of a loan for the payment) of the comparatively small sum of about six million francs due the Russian claimants would imperil the existence of the Ottoman Em- pire or seriously compromise its internal or external situation. The exception of force majeure can not, therefore, be admitted.
7. The Sublime Porte maintains then "that the acknowledge- ment of a principal debt to the Russian claimants constituted a gift agreed upon in their interest between the two Governments" (Counter-reply, No. 253, p. 19; No. 331, p. 44; No. 365, p. 55, and conclusions, p. 87). It remarks that the German civil code, paragraph 522, the Germanic common law, Austrian jurisprudence and the Roman law, pleaded on suppletory grounds (Law 16, praemium, Digest 22. 1 ) forbid the imposition of moratory interest in the case of a donation. It cites, especially, the arbitral award made on July 2, 1881, by His Majesty the Emperor of Austria in the Mosquito affair between Great Britain and Nicaragua.
In this affair Great Britain had renounced by a treaty of 1860 its protectorate over Mosquito, had given up the city of Grey Town (San Juan del Norte) and had recognized the sovereignty of Nica-
THE RUSSIAN INDEMNITY CASE 319
ragua over Mosquito, stipulating that this republic should pay for ten years to the chief of the Mosquitos an annual sum of 5,000 dollars, to facilitate the establishment of self-government in his territories. It was not long before this annuity ceased to be paid. In the opinion of the arbitrator, the chief of the Mosquitos was re- ceiving the benefit of a veritable gift, claimed in his behalf from Nicaragua by the British Government, which had made political sacrifices in giving up its protectorate and the port of Grey Town.
In the opinion of the tribunal, the Russian claimants suffered damages — were victims of acts of war. Turkey bound itself to re- imburse the amount of these damages to all the Russian victims who might prove their injury to the satisfaction of the commission estab- lished at the Russian Embassy at Constantinople. The decisions of this commission were not contested and it is not incumbent upon the arbitral tribunal to examine into them again or to decide whether or not they were too liberal. If the indemnification by Turkey of the Russian victims of war operations was not compulsory in the common law of nations, it is in nowise contrary to that law and can be considered as the transformation of a moral duty into a juridical obligation by a treaty of peace, under conditions analogous to a war indemnity properly so called. In all the thirty years' diplomatic correspondence over this affair, the Russian victims of war operations have always been considered by the two parties signatory to the agreements of 1878-1879 as claimants and not as donees. Finally, Turkey has obtained value received for its pre- tended gift by the fact that hostilities have ceased (Russian Reply, p. 50, paragraph 2). It is, therefore, not possible to admit the ex- istence of an act of generosity, and still less of a gift, and it is con- sequently superfluous to inquire whether in public international law donors should receive the benefit of exemption from moratory in- terest, established for their benefit by certain private legislation.
8. The Sublime Porte pleads the exception of res judicata, sup- porting its position upon the fact that three claimants have asked the commission established at the Russian Embassy at Constanti- nople for interest to the time of complete payment, that the commis- sion set aside their request, and that this negative action would cer- tainly have intervened in the case of the other claimants who have not demanded such interest. (Ottoman Counter-reply, p. 86.)
320 THE HAGUE COURT REPORTS
This exception can not be admitted because, even granting that the Constantinople commission may be considered as a tribunal, the question now pending is whether interest-damages are due, a pos- teriori, by reason of the dates on which the indemnities fixed from 1878-81 by the commission were paid. But that commission did not decide and could not have decided this question.
9. The Sublime Porte pleads, as a last exception, the fact "that it was understood, tacitly and indeed expressly, in the course of the eleven or twelve last years of diplomatic correspondence, that Rus- sia did not claim interest or interest-damages of any kind which would have been a burden to the Ottoman Empire," and "that the Imperial Russian Government, when once the entire principal was placed at its disposal, could not validly bring up again in a one- sided manner the understanding agreed to by it" (Ottoman Coun- ter-reply, pp. 89-91).
The Imperial Ottoman Government remarks, and justly, that if Russia sent to Constantinople through diplomatic channels, on De- cember 31, 1890/ January 12, 1891, a regular demand for payment of the principal and interest it follows, on the other hand, from the subsequent correspondence, that at the time of the payments on ac- count, no interest reservation appeared in the receipts given by the Embassy, and the Embassy never considered the sums received as interest. It also follows that the parties not only mapped out plans to bring about payment, but abstained from mentioning in- terest during a period of some ten years. It follows, above all, that the two Governments interpreted in the same manner the term bal- ance of the indemnity; that this term, used for the first time by the Ottoman Ministry of Foreign Affairs in its communication of March 27, 1893, frequently recurs thereafter; that the two Gov- ernments have constantly meant by the word balance the portion of the principal remaining due on the date the notes were exchanged, which sets aside moratory interest; that the Russian Ambassador at Constantinople wrote on May 23/June 4, 1894 : "I am obliged to insist that the total of the balance due Russian subjects, which amounts to 91,00X3 Turkish pounds, be paid to the Embassy without further delay, in order to give satisfaction to the just complaints and claims of those interested . . . and thus really put an end — to use your Excellency's expression — to the incidents to which it
THE RUSSIAN INDEMNITY CASE 321
had given rise," that this sum of 91,000 Turkish pounds was exactly the sum which was then due on the principal and that thus moratory interest was not considered ; that on October 3d of the same year, 1894, Turkey, about to make a payment on account, of 50,000 pounds, announced to the Embassy, without meeting with any ob- jections, that the Ottoman Bank "will guarantee payment of the balance of 41,000 Turkish pounds"; that on January 13/25, 1896, the Embassy again used the same term, balance of the indemnity, in protesting against the handing over by Turkey to the Ottoman Bank assignments of revenues which were already pledged to the Imperial Russian Government for the payment of the war indem- nity; that on February llth of the same year, 1896, at the time of the discussion of the resources to be furnished to the Ottoman Bank, the Sublime Porte mentioned, in a note addressed to the Em- bassy, "the 43,978 Turkish pounds, representing the balance of the indemnity" ; that a few days later, February 10/22, the Embassy replied, making use of the same words balance of the indemnity; and that on May 28th the Ottoman Ministry of Foreign Affairs mentioned once more "the sum of 43,978 Turkish pounds repre- senting the said balance" ; that the same was true of a note of the Embassy dated April 25/May 8, 1900, although more than four years had elapsed between this communication and the communi- cation of 1896, and that the question of interest should have been again called to attention in some way after so long an interval ; that this same expression, balance of the indemnity, appears in the note of the Sublime Porte of July 5, 1900; that, finally, on March 3/16, 1901, the Russian Embassy, after having stated that the Ottoman Bank had not supplied further funds "for the payment of the 43,978 Turkish pounds, the amount of the balance of the indemnity due to Russian subjects," asked that categorical orders be sent to the proper person "for the payment without further delay 'of the above-mentioned sums' " ; that this balance, or practically this amount, having been held by the Ottoman Bank at the disposal of the Embassy, it was not until several months later, June 23/July 6, that the Embassy transmitted to the Sublime Porte a request of "those interested," demanding payment of some twenty million francs for interest on account of delayed payments, expressing the hope that the Sublime Porte "will not hesitate to recognize in prin-
322 THE HAGUE COURT REPORTS
ciple the just grounds for the claim," except "to refer the examina- tion of the details to a" mixed Russo-Turkish "commission" ; that in short, for eleven years and more, and up to a date after the payment of the balance of the principal, there had not only been no question of interest between the two Governments, but mention had been made again and again of only the balance of the prin- cipal.
When the tribunal recognized that, according to the general prin- ciples and custom of public international law, there was a similarity between the condition of a State and that of an individual, which are debtors for a clear and exigible conventional sum, it is equitable and juridical also to apply by analogy the principles of private law common to cases where the demand for payment must be considered as removed and the benefit to be derived therefrom as eliminated. In private law, the effects of demand for payment are eliminated when the creditor, after having made legal demand upon the debtor, grants one or more extensions for the payment of the principal ob- ligation, without reserving the rights acquired by the legal demand (Toullier-Duvergier, Droit frangais, vol. iii, p. 159, No. 256), or again, when "the creditor does not follow up the summons to the debtor," and "these rules apply to interest-damages, and also to in- terest due for the non-fulfilment of an obligation ... or for delay in its fulfilment" (Duranton, Droit francais, x, p. 470; Aubry and Rau, Droit Civil, 1871, iv, p. 99; Berney, De la demcure, etc., Lausanne, 1886, p. 62 ; Windscheid, Lehrbuch des Pandektenrcchts, 1879, p. 99; Demolombe, x, p. 49; Laronbiere i, art. 1139, No. 22, etc.).
In the relations between the Imperial Russian Government and the Sublime Porte, Russia therefore renounced its right to interest, since its Embassy repeatedly accepted without discussion or reser- vation and mentioned again and again in its own diplomatic cor- respondence the amount of the balance of the indemnity as identical with the amount of the balance of the principal. In other words, the correspondence of the last few years proves that the two par- ties interpreted, in fact, the acts of 1879 as implying that the pay- ment of the balance of the principal and the payment of the bal- ance to which the claimants had a right were identical, and this
THE RUSSIAN INDEMNITY CASE 323
implied the relinquishment of the right to interest or moratory in- terest-damages.
The Imperial Russian Government can not, when the principal of the indemnity has been paid or placed at its disposal, validly re- consider one-sidedly an interpretation accepted and practised in its name by its Embassy.
Ill IN CONCLUSION
The arbitral tribunal, basing its conclusion upon the statements of law and fact which precede, is of the opinion
That in principle the Imperial Ottoman Government was liable to moratory indemnities to the Imperial Russian Government from December 31, 1890/January 12, 1891, the date of the receipt of the explicit and regular demand for payment.
But that, in fact, the benefit to the Imperial Russian Government of this legal demand having ceased as a result of the subsequent re- linquishment by its Embassy at Constantinople, the Imperial Ot- toman Government is not held liable to pay interest-damages by reason of the dates on which the payment of the indemnities was made.
And, consequently, decides that a negative reply is made to ques- tion 1 of Article 3 of the compromis, thus stated : "Whether or not the Imperial Ottoman Government must pay the Russian claim- ants interest-damages by reason of the dates on which the said Gov- ernment made payment of the indemnities determined in pursuance of Article 5 of the treaty of January 27/February 8, 1879, as well as of the protocol of the same date?"
Done at The Hague, in the building of the Permanent Court of Arbitration, November 11, 1912.
President: LARDY
Secretary General: MICHIELS VAN VERDUYNEN
Secretary: ROELL
324 THE HAGUE COURT REPORTS
AGREEMENT FOR ARBITRATION
Compromis of arbitration between the Imperial Russian Government and the Imperial Ottoman Government. — Signed at Constantinople, July 22 /August 4,
The Imperial Russian Government and the Imperial Ottoman Gov- ernment, co-signatories of the Hague Convention of October 18, 1907, for the pacific settlement of international disputes :
Considering the provisions of Article 5 of the treaty signed at Con- stantinople between Russia and Turkey, January 27/February 8, 1879, as follows:
The claims of Russian subjects and institutions in Turkey for indemnity on account of damages suffered during the war will be paid as soon as they are examined by the Russian Embassy at Constantinople and transmitted to the Sublime Porte.
The total of these claims shall in no case exceed 26,750,000 francs.
Claims may be presented to the Sublime Porte beginning one year from the date on which ratifications are exchanged, and no claims will be admitted which are presented after the expiration of two years from that date;
Considering the additional explanation contained in the protocol bearing the same date:
As to the expiration of one year, fixed by this article as the date from which claims may be presented to the Sublime Porte, it is understood that one exception will be made in favor of the Rus- sian Hospital's claim, amounting to 11,200 pounds sterling;
Considering that a disagreement has arisen between the Imperial Russian Government and the Imperial Ottoman Government as to the questions of law arising from the dates on which the Imperial Otto- man Government made the following payments on the amounts of the indemnities regularly presented in pursuance of the said Article 5, to wit :
Turkish pounds Piastres Paras
In 1884 .................... 50,000
In 1889 .................... 50,000
In 1893 .................... 75,000
In 1894 .................... 50,000
In 1902 .................... 42,438 67 |
1 American Journal of International Law, vol. 7, Supplement, p. 62. For the original French text, see Appendix, p. 551.
THE RUSSIAN INDEMNITY CASE 325
Considering that the Imperial Russian Government holds that the Imperial Ottoman Government is responsible to the Russian claimants for interest-damages because of the delay in settling its debt;
Considering that the Imperial Ottoman Government contests, both in fact and in law, the grounds of the Imperial Russian Government's contention ;
Considering that it had not been possible to settle the dispute through diplomatic channels;
And having resolved, in conformity with the stipulations of the said Hague Convention, to end this controversy by submitting the question to arbitration ;
Have authorized to this effect their representatives designated be- low, to wit:
For Russia,
His Excellency Monsieur Tcharikow, Ambassador of His Majesty the Emperor of Russia at Constantinople ;
For Turkey,
His Excellency Rifaat Pasha, Minister of Foreign Affairs, to con- clude the following compromis:
ARTICLE 1
The Powers in controversy decide that the arbitral tribunal to which the question will be submitted as a last resort shall be composed of five members, who shall be appointed in the following manner :
Each party must name, as soon as possible and within two months from the date of this compromis, two arbitrators, and the four arbi- trators thus appointed shall choose an umpire. In case the four arbi- trators shall not, within two months of their appointment, have chosen an umpire either unanimously or by a majority, the choice of an um- pire devolves upon a third party agreed upon by the parties. If, after the lapse of two more months, an agreement is not reached upon this question, each party designates a different Power and the umpire is chosen by the Powers thus designated.
If, after the lapse of two more months, these two Powers have not been able to agree, each of them presents two candidates selected from the list of members of the Permanent Court, exclusive of the members of the said Court selected by the two Powers or by the parties and being nationals neither of the former nor of the latter. These candi- dates, moreover, can not belong to the nationality of the arbitrators
326 THE HAGUE COURT REPORTS
appointed by the parties in the present arbitration. The umpire is chosen by lot from the two candidates thus presented.
The drawing of lots will be done by the International Bureau of the Permanent Court at The Hague.
ARTICLE 2
The Powers in controversy will be represented before the arbitral tribunal by agents, counsel or advocates, in conformity with the pro- visions of Article 62 of the Hague Convention of 1907 for the pacific settlement of international disputes.
These agents, counsel or advocates will be appointed by the parties in ample time to prevent any delay in the arbitration.
ARTICLE 3
The questions in dispute and upon which the parties ask the arbitral tribunal to render a definitive decision are as follows:
I. Whether or not the Imperial Ottoman Government must pay the Russian claimants interest-damages by reason of the dates on which the said Government made payment of the indemnities determined in pursuance of Article 5 of the treaty of January 27/February 8, 1879, as well as of the protocol of the same date?
II. In case the first question is decided in the affirmative, what should be the amount of these interest-damages?
ARTICLE 4
The arbitral tribunal, as soon as it is constituted, shall meet at The Hague at a date to be determined by the arbitrators and within one month from the appointment of the umpire. After settling, in con- formity with the letter and the spirit of the Hague Convention of 1907, all questions of procedure which may arise and which are not provided for in the present compromis, the said tribunal shall deter- mine the date of its next meeting.
However, it is agreed that the tribunal can not open the arguments on the questions in dispute, either before the expiration of two months or after the expiration of three months from the filing of the counter- case or the counter-reply provided for by Article 6 and, later, by the arrangements set forth in Article 8.
THE RUSSIAN INDEMNITY CASE 327
ARTICLE 5
The arbitral procedure will include two distinct phases : the written statement of the case ; and the arguments which will consist in the oral development of the pleas of the parties before the tribunal.
French is the only language which the tribunal will use and which may be used before it.
ARTICLE 6
Within eight months at most after the date of the present com- promis, the Imperial Russian Government must deliver to each of the members of the arbitral tribunal one complete copy, and to the Im- perial Ottoman Government ten complete copies, written or printed, of its case, containing every argument in support of its claim with refer- ence to the two questions mentioned in Article 3.
Within eight months at most after this delivery, the Imperial Otto- man Government must deliver to each of the members of the tribunal, as well as to the Imperial Russian Government, the same number, as specified above, of complete copies, written or printed, of its counter- case, with all supporting arguments, but confining itself to question 1 of Article 3.
Within one month after this delivery the Imperial Russian Govern- ment will inform the president of the arbitral tribunal whether it in- tends to present a reply. In that case, it will have an extension of three months at most from the date of such notification in which to communicate the said reply under the same conditions as the case. The Imperial Ottoman Government will then have an extension of four months from the date of this communication to present its coun- ter-reply, under the same conditions as the counter-case.
The extension fixed by the present article may be lengthened if agreed to by both parties, or if the tribunal deems it necessary in order to reach a just decision.
But the tribunal will not take into consideration cases, counter-cases or other communications which are presented to it by the parties after the expiration of the last extension which it has granted.
ARTICLE 7
If in the cases or other papers exchanged either of the parties has referred or alluded to a document or paper of which it alone is in possession and of which it has not furnished a copy, it must furnish
328 THE HAGUE COURT REPORTS
the other party with a copy, if the other party so requests, within thirty days.
ARTICLE 8
In case the arbitral tribunal decides question 1 of Article 3 in the affirmative, it must, before taking up question 2 of the same article, grant the parties further extensions, which may not be less than three months each, for the presentation and exchange of their demands and arguments in support of them.
ARTICLE 9
The decisions of the tribunal on the first, and contingently on the second question at issue, shall be rendered, in so far as possible, within one month from the closing by the president of the arguments relating to each of these questions.
ARTICLE 10
The judgment of the arbitral tribunal shall be final and must be executed strictly and without any delay.
ARTICLE 11
Each party bears its own expenses and half of the expenses of the tribunal.
ARTICLE 12
Whatever questions arise in this arbitration which are not provided for by the present compromis shall be governed by the stipulations of the Hague Convention for the pacific settlement of international dis- putes, except, however, those articles the acceptance of which has been reserved by the Imperial Ottoman Government. Done at Constantinople, July 22/ August 4, 1910.
(Signed) RIFAAT (Signed) N. TCHARYKOW
THE CARTHAGE CASE
between FRANCE and ITALY
Decided May 6, 1913
Syllabus
During the Turko-Italian war in Africa in 1912, the Italians estab- lished a strict watch against the possibility of military supplies or rein- forcements of any kind reaching the Turks in Tripoli by way of Tunis. As the result, on January 16, 1912, the Carthage, a steamer belonging to the Compagnie Generale Transatlantique, was stopped by an Italian war vessel while on its way from Marseilles to Tunis, on account of having on board an aeroplane and parts of another, destined to a private consignee in Tunis, which the Italians claimed was contraband of war. It being impossible to transfer the aeroplane from one ship to another, the Carthage was conveyed to Cagliari, where it was de- tained until January 20, 1912. The release of the vessel was de- manded by the French Ambassador at Rome. The aeroplane and parts were landed by order of the company and the Carthage was al- lowed to resume her voyage.
Upon assurance to the Italian Government that the aeroplane was intended purely for exhibition purposes and that there was no inten- tion on the part of the owner to offer his services to the Ottoman Government, the aeroplane was released on January 21, 1912. The French Government demanded in addition reparation for the insult to the French flag and for the violation of international law and conven- tions between the two Governments and damages for the injury to the private parties interested in the vessel and its voyage. The Italian Government made a counter-claim against France for the amount of the expenses caused by the seizure of the Carthage.
The controversy was referred for settlement to a tribunal selected from the members of the Permanent Court of Arbitration at The Hague, under a com promts dated March 6, 1912.1 The tribunal was composed of K. Hj. L. Hammarskjold of Denmark; Louis Renault of France; Guido Fusinato of Italy; J. Kriege of Germany, and Baron Michel de Taube of Russia. Its sessions began March 31, 1913, and ended May 6, 1913, the decision being rendered on the latter date. The tribunal held that, while belligerents have as a general rule the right of visit and search, to determine if contraband is carried by neutral vessels, the legality of acts committed after the search depends upon the presence of contraband or sufficient legal reasons to believe
"" 1P0 st, p. 336.
330 THE HAGUE COURT REPORTS
that it exists; that the information in the possession of the Italian authorities as to the hostile destination of the aeroplane, which was an essential element to establish its contraband nature, was not legally sufficient and that, therefore, the capture of the vessel and its convoy to Cagliari and detention there were illegal. The French Government was awarded the sum of 160,000 francs in satisfaction for the dam- ages suffered by the private parties interested in the vessel and its voyage. The national claims of the respective Governments were, however, disallowed.
AWARD OF THE TRIBUNAL
Award of the arbitral tribunal in the case of the French mail steamer "Carthage." — The Hague, May 6, 1913*
Considering that, by an agreement dated January 26, 19 12,2 and by a compromis dated the following 6th of March,3 the Government of the French Republic and the Royal Italian Government have agreed to submit to an arbitral tribunal composed of five members the decision of the following questions :
1. Were the Italian naval authorities within their rights in pro- ceeding, as they did, to the capture and temporary detention of the French mail steamer Carthage?
2. What should be the pecuniary or other consequences, follow- ing the decision of the preceding question?
Considering that, in accordance with this compromis, the two Governments have chosen, by common consent, the following mem- bers of the Permanent Court of Arbitration to constitute the ar- bitral tribunal:
His Excellency Guido Fusinato, Doctor of Law, Minister of State, former Minister of Public Instruction, honorary professor of international law in the University of Turin, Deputy, Councilor of State;
Mr. Knut Hjalmar Leonard Hammarskjold, Doctor of Law, for- merly Minister of Justice, formerly Minister of Public Worship and Instruction, formerly Envoy Extraordinary and Minister Plenipo- tentiary at Copenhagen, formerly President of the Court of Ap-
1 American Journal of International Law, vol. 7, p. 623. For the original French text, see Appendix, p 556. *Post, p. 337. *Post, p. 336.
THE CARTHAGE CASE 331
peals of Jonkoping, formerly professor in the Faculty of Law of Upsala, Governor of the Province of Upsala ;
Mr. Kriege, Doctor of Law, at present Confidential Counselor of Legation and Director in the Department of Foreign Affairs, Pleni- potentiary in the German Federal Council;
Mr. Louis Renault, Minister Plenipotentiary, member of the In- stitute, professor in the Faculty of Law of the University of Paris and of the £cole Libre des Sciences Politiques, Jurisconsult in the Ministry of Foreign Affairs;
His Excellency Baron Michel de Taube, Doctor of Law, Assist- ant Minister of Public Instruction of Russia, Councilor of State;
That the two Governments have, at the same time designated Mr. Hammarskjold to perform the duties of president.
Considering that, in accordance with the compromis of March 6, 1912, the cases and counter-cases have been duly exchanged by the parties and communicated to the arbitrators ;
Considering that the tribunal, constituted as above, met at The Hague on March 31, 1913;
That the two Governments have respectively appointed as agents and counsel,
The Government of the French Republic :
Mr. Henri Fromageot, advocate in the Court of Appeals of Paris, assistant jurisconsult in the Ministry of Foreign Affairs, counsel in international law for the Navy Department, agent ;
Mr. Andre Hesse, advocate in the Court of Appeals of Paris, member of the Chamber of Deputies, counsel ;
The Royal Italian Government :
Mr. Arturo Ricci-Busatti, Envoy Extraordinary and Minister Plenipotentiary, Chief of the Bureau of Disputed Claims and Legis- lation of the Royal Ministry of Foreign Affairs, agent;
Mr. Dionisio Anzilotti, professor of international law in the University of Rome, counsel.
Considering that the agents of the parties have presented the fol- lowing demands to the tribunal, to-wit,
The agent of the Government of the French Republic :
May it please the tribunal
As to the first question propounded by the compromis,
332 THE HAGUE COURT REPORTS
To say that the Italian naval authorities were not within their rights in proceeding as they did to the capture and temporary detention of the French mail steamer Carthage;
In consequence and as to the second question,
To say that the Royal Italian Government shall be obliged to pay to the Government of the French Republic as damages :
1. The sum of one franc for the offense against the French flag;
2. The sum of one hundred thousand francs as reparation for the moral and political injury resulting from the failure to observe in- ternational common law and conventions binding upon both Italy and France;
3. The sum of five hundred and seventy-six thousand, seven hun- dred and thirty-eight francs, twenty-three centimes, the total amount of the losses and damages claimed by private parties inter- ested in the steamer and its voyage ;
To say that the above-mentioned sum of one hundred thousand francs shall be paid to the Government of the Republic for the benefit of such work or institution of international interest as it may please the tribunal to indicate;
In the second place, and in case the tribunal does not consider itself at present sufficiently informed as to the grounds for the in- dividual claims,
To say that one or more of its members to whom it may be pleased to entrust this duty, shall proceed, in the presence of the agents and counsel of the two Governments, in the chamber where its deliber- ations take place, to the examination of each of the said individual claims;
In all cases, and by the application of Article 9 of the compromis,
To say that, after the expiration of three months from the day of the award, the sums to be paid by the Royal Italian Government and not yet paid shall bear interest at the rate of four per cent per annum.
And the agent of the Royal Italian Government :
May it please the tribunal
As to the first question propounded by the compromis,
To say and decide that the Italian naval authorities were entirely
THE CARTHAGE CASE 333
within their rights in proceeding, as they did, to the capture and temporary detention of the French mail steamer Carthage;
In consequence and as to the second question,
To say and decide that the French Government shall be obliged to pay to the Italian Government the sum of two thousand and seventy-two francs, twenty-five centimes, the amount of expense caused by the seizure of the Carthage;
To say, that, upon the expiration of three months from the day of the award, the sum to be paid by the Government of the French Republic will, if it has not yet been paid, bear interest at the rate of four per cent per annum.
Considering that, after the tribunal had heard the oral statements of the agents of the parties and the explanations which they fur- nished upon its request, the arguments were duly declared closed.
IN THE MATTER OF FACT
Considering that the French mail steamer Carthage, of the Com- pagnie Generate Transatlantique, in the course of a regular trip be- tween Marseilles and Tunis, was stopped on January 16, 1912, at 6:30 a.m., in the open sea, seventeen miles from the coast of Sar- dinia, by the destroyer Agordat of the Royal Italian Navy ;
That the commander of the Agordat, having ascertained that there was on board the Carthage an aeroplane belonging to one Duval, a French aviator, and consigned to his address at Tunis, declared to the captain of the Carthage that the aeroplane in ques- tion was considered by the Italian Government contraband of war;
That, as it was impossible to transfer the aeroplane from one vessel to the other, the captain of the Carthage received the order to follow the Agordat to Cagliari, where he was detained until Janu- ary 20;
IN THE MATTER OF LAW
Considering that, according to the principles universally acknowl- edged, a belligerent war-ship has, as a general rule and except under special circumstances, the right to stop a neutral commercial vessel in the open sea and proceed to search it to see whether it is observ- ing the rules of neutrality, especially as to contraband ;
334 THE HAGUE COURT REPORTS
Considering, on the other hand, that the legality of every act which goes beyond a mere search depends upon the existence either of a trade in contraband or of sufficient reasons to believe that such a trade exists,
That, in this respect, the reasons must be of a juridical nature;
Considering that in this case the Carthage was not only stopped and searched by the Agordat; but also taken to Cagliari, seques- trated and detained for a certain time, after which it was released by the administrative authority;
Considering that the purpose of the measures taken against the French mail steamer was to prevent the transportation of the aero- plane belonging to one Duval, and shipped on the Carthage to the address of this same Duval at Tunis;
That this aeroplane was considered by the Italian authorities con- traband of war, both by its nature and by its destination, which in reality might have been for the Ottoman forces in Tripolitana ;
Considering, in so far as concerns the hostile destination of the aeroplane, an essential element of its seizabihty,
That the information possessed by the Italian authorities was of too general a nature and had too little connection with the aeroplane in question to constitute sufficient juridical reasons to believe in a hostile destination and, consequently, to justify the capture of the vessel which was transporting the aeroplane;
That the despatch from Marseilles, relating certain remarks of the mechanician of Mr. Duval, did not reach the Italian authorities until after the Carthage had been stopped and taken to Cagliari and could not, therefore, have caused these measures; that, moreover, the despatch could not in any case have been considered a sufficient reason, in the light of what has previously been said ;
Considering that, this conclusion being reached, the tribunal is not called upon to inquire whether or not the aeroplane should by its nature be included in articles of contraband, either conditional or absolute, or to examine whether the theory of a continuous voy- age should or should not be applicable in this case;
Considering that the tribunal finds it likewise superfluous to ex- amine the question whether, at the time of the measures taken against the Carthage there were irregularities of form, and if, in
THE CARTHAGE CASE 335
case there were, these irregularities were of a kind to vitiate meas- ures which would otherwise have been legal;
Considering that the Italian authorities demanded surrender of the mail only that it might reach its destination as quickly as pos- sible,
That this demand, which apparently was at first misunderstood by the captain of the Carthage, was in conformity with the Conven- tion of October 18, 1907, relative to certain restrictions in the ex- ercise of the right of capture, which, however, was not ratified by the belligerents.
Upon the request that the Royal Italian Government be con- demned to pay to the Government of the French Republic as dam- ages:
1. The sum of one franc for the offense against the French flag;
2. The sum of one hundred thousand francs as reparation for the moral and political injury resulting from the failure to observe in- ternational common law and conventions binding upon both France and Italy,
Considering that, in case a Power should fail to fulfil its obliga- tions, whether general or special, to another Power, the establish- ment of this fact, especially in an arbitral award, constitutes in itself a serious penalty ;
That this penalty is made heavier in such case by the payment of damages for material losses;
That, as a general rule and excluding special circumstances, these penalties appear to be sufficient;
That, also, as a general rule, the introduction of a further pecun- iary penalty appears to be superfluous and to go beyond the purposes of international jurisdiction;
Considering that, by the application of what has just been said, the circumstances of the present case are not such as to call for such a supplementary penalty; that, without further examination, there is no occasion to comply with the above-mentioned request.
Upon the request of the French agent that the Italian Govern- ment be condemned to pay the sum of five hundred and seventy-six thousand seven hundred and thirty-eight francs, twenty-three cen- times, the total amount of the losses and damages claimed by private parties interested in the vessel and its voyage,
336 THE HAGUE COURT REPORTS
Considering that the request for indemnity is, in principle, justi- fied;
Considering that the tribunal, after having heard the concurring explanations of two of its members charged by it to investigate the said claims, has fixed the amount due the Compagnie Generate Transatlantique at seventy-five thousand francs, the amount due the aviator Duval and his associates at twenty-five thousand francs; and, finally, the amount due the passengers and shippers at sixty thousand francs ; making a total of one hundred and sixty thousand francs to be paid by the Italian Government to the French Govern- ment.
For these reasons
The arbitral tribunal declares and pronounces as follows:
The Italian naval authorities were not within their rights in pro- ceeding, as they did, to the capture and temporary detention of the French mail steamer Carthage.
The Royal Italian Government shall be obliged, within three months from the present award, to pay to the Government of the French Republic the sum of one hundred and sixty thousand francs, the amount of the losses and damages suffered, by reason of the capture and seizure of the Carthage, by the private parties interested in the vessel and its voyage.
There is no occasion to give effect to the other claims contained in the demands of the two parties.
Done at The Hague, in the building of the Permanent Court of Arbitration, the 6th day of May, 1913.
President: Hj. L. HAMMARSKJOLD
Secretary General: MICHIELS VAN VERDUYNEN Secretary: ROELL
AGREEMENT FOR ARBITRATION
Compromis of arbitration relative to the question raised by the capture and temporary detention of the French mail steamer "Carthage." — Signed at Paris, March 6, ipiz.1
The Government of the French Republic and the Royal Italian translation. For the original French text, see Appendix, p. 561.
THE CARTHAGE CASE 337
Government, having agreed, on January 26, 1912,1 in application of the arbitration convention of December 25, 1903, which was renewed on December 24, 1908, to entrust an arbitral tribunal with the examina- tion of the capture and temporary detention of the French mail steamer Carthage by the Italian naval authorities, as well as with the duty of deciding the consequences which should follow,
The undersigned, duly authorized for that purpose, have agreed upon the following compromise:
ARTICLE 1
An arbitral tribunal, composed as is hereinafter stipulated, is charged with the settling of the following questions:
1. Were the Italian naval authorities within their rights in pro- ceeding, as they did, to the capture and temporary detention of the French mail steamer Carthage?
2. What pecuniary or other consequences should follow the decision of the preceding question?
ARTICLE 2
The tribunal shall be composed of five arbitrators which the two Governments shall choose from among the members of the Permanent Court of Arbitration at The Hague, appointing one of them to exer- cise the functions of umpire.2
ARTICLE 3
On June 15, 1912, each party shall deposit with the Bureau of the Permanent Court of Arbitration fifteen copies of its memorial, with certified copies of all papers and documents which it intends to present in the case.
The Bureau shall guarantee their transmission to the arbitrators and parties, to wit: two copies for each arbitrator; three copies for each party : two copies shall remain in the archives of the Bureau.
On August 15, 1912, each party shall deposit in the same manner as above its counter-memorial with the papers appertaining thereto, and its final conclusions.
ARTICLE 4
Each of the parties shall deposit with the Bureau of the Permanent Court of Arbitration at The Hague, at the same time that it deposits
1See post, p. 339.
2 See supplementary agreement of April 4, 1912, post, p. 340.
338 THE HAGUE COURT REPORTS
its memorial, a sum for the purpose of expenses, which shall be fixed by mutual agreement.
ARTICLE 5
The tribunal shall meet at The Hague, upon the convocation of its president, in the second fortnight of the month of September, 1912.
ARTICLE 6
Each party shall be represented by an agent whose duty it shall be to serve as intermediary between it and the tribunal.
The tribunal may demand that either agent furnish it, if necessary, with oral or written explanations, to which the agent of the opposing party shall have the right to reply.
ARTICLE 7
The French language shall be used by the tribunal. Each party may use its own language.
ARTICLE 8
The award of the tribunal shall be rendered with the least possible delay and in any case within the thirty days following the closing of the debates. However, this period may be extended upon the demand of the tribunal and the consent of the parties.
ARTICLE 9
The tribunal is competent to regulate the conditions for the execu- tion of its award.
ARTICLE 10
On all points not covered by the present compromis, the stipulations of the Hague Convention for the pacific settlement of international disputes, of October 18, 1907, shall be applicable to the present arbitration.
Done, in duplicate, at Paris, March 6, 1912.
(Signed) L. RENAULT (Signed) G. FUSINATO
THE CARTHAGE CASE 339
ADDITIONAL DOCUMENTS
Joint Note of the French Ambassador and the Italian Minister of Foreign Affairs, concerning the settlement of the questions arising out of the arrest of the French steamers "Carthage" and "Manouba"* — Signed January 26, 1912?
The Ambassador of France and the Minister of Foreign Affairs of Italy, having investigated in the most friendly spirit the circumstances which preceded and followed the arrest and search by an Italian cruiser of two French steamers proceeding from Marseilles to Tunis, are happy to report, in thorough accord and before every other con- sideration, that in neither of the two countries has there arisen as a result of these incidents any feeling contrary to the sentiments of sincere and constant friendship which unite them.
This report has led the two Governments without difficulty to decide :
1. That the questions arising from the capture and temporary de- tention of the steamer Carthage shall be referred to the Court of Arbitration at The Hague for examination, under the Franco-Italian arbitration convention of December 23, 1903, renewed December 24, 1908.
2. That in the matter of the seizure of the Manouba and of the Ot- toman passengers who were on board, as this action, according to the Italian Government, was taken by virtue of the rights which it declares it possesses according to the general principles of international law and Article 47 of the Declaration of London of 1909, the circumstances under which this action was taken and the consequences thereof shall likewise be submitted for examination to the high international Court established at The Hague; that, in order to restore the statu quo antet in so far as concerns the Ottoman passengers who were seized, the latter shall be delivered to the French consul at Cagliari, who shall isee that they are taken back to the place from which they sailed, upon the responsibility of the French Government, which Government shall take the necessary measures to prevent Ottoman passengers not be- longing to the "Red Crescent" but to fighting forces, from sailing from a French port to Tunis or to the scene of military operations.
1For the Manouba Case, see post, p. 341.
a American Journal of International Law, vol. 7, Supplement, p. 176. For the original French text, see Appendix, p. 562.
340 THE HAGUE COURT REPORTS
Franco-Italian Agreement Signed at Paris, April 4,
The Government of the French Republic and the Royal Italian Government, having in mind the two compromis negotiated March 6, 1912,2 by Messrs. Louis Renault and Fusinato, for the purpose of settling by arbitration of the Permanent Court at The Hague the in- cidents relative to the seizure of the Carthage and of the Manouba, declaring their approval of the terms, and considering themselves bound by their texts;
Have appointed by common accord the following members of the Permanent Court of Arbitration to constitute the arbitral tribunal :
Mr. Guido Fusinato, Doctor of Law, former Minister of Public Instruction, former professor of international law at the University of Turin, Deputy, Councilor of State;
Mr. Knut Hjalmar Leonard Hammarskjold, Doctor of Law, former Minister of Justice, former Minister of Public Worship and Instruc- tion, former Envoy Extraordinary and Minister Plenipotentiary at Copenhagen, former President of the Court of Appeals of Jonkoping, former professor in the Faculty of Law of Upsala, Governor of the province of Upsala;
Mr. Kriege, Doctor of Law, Confidential Counselor of Legation, Director of the Department of Foreign Affairs;
Mr. Louis Renault, Minister Plenipotentiary, professor in the Faculty of Law of Paris, Counselor to the Minister of Foreign Affairs ;
Baron Taube, permanent member of the Council of the Minister of Foreign Affairs, professor of international law in the Imperial Uni- versity of St. Petersburg, Councilor of State;
Mr. Hammarskjold shall perform the duties of umpire or president of the tribunal.
The two Governments agree to fix at 3,000 Netherland florins the sum to be deposited by each of them, conformably to Article 4 of each compromis, it being understood that the said sum is to serve as pro- vision for all business with which the above-mentioned arbitral tri- bunal is charged.
The two Governments reserve the right to modify by mutual agree- ment Article 5 of each of the compromis with respect to the date of the meeting of the arbitral tribunal.
Done at Paris, April 4, 1912.
(L. S.) Signed: R. POINCARE (L. S.) Signed: M. RUSPOLI
iTranslation. For the original French text, see Appendix, p. 563. *AnU, p. 336; post, p. 351.
THE MANOUBA CASE
between FRANCE and ITALY
Decided May 6, 1913
Syllabus
On January 5, 1912, during the war between Turkey and Italy over Tripoli and Cyrenaica, the Ottoman Government requested the French Government to provide facilities for a Turkish Red Crescent Mission to reach the seat of the war via Tunis, which the French Government agreed to do. The Italian Ambassador in Paris protested against the proposed action, but the French Government assured him that the Turks in question were members of the Red Crescent Mission and also sent instructions that the Tunis authorities should confirm this fact before allowing the Turks to proceed. This information and proceed- ing satisfied the Ambassador and he communicated with his Govern- ment. Before his message arrived, however, the Manouba, a French vessel, upon which the Turks were being transported, was captured on January 18, 1912, by an Italian war vessel, and taken to Cagliari, at which port it arrived on the same day. The Italians, claiming that the Turks were carrying arms and money for the use of the Ottoman forces in Tripoli, demanded their surrender, and, on the refusal of the captain of the Manouba to comply, seized the vessel. The French Embassy was advised of what had occurred, and, in view of assur- ances of the Italians that the Turks were belligerents, directed the vice-consul at Cagliari to order their removal from the Manouba. This was done in the afternoon of January 19, 1912, and the vessel proceeded on her voyage. Notwithstanding the action of the French Embassy, vigorous representations were immediately made to the Italian Government by the French Government, which demanded the release of the Turks, reparation for the offense to the French flag, the violation of the conventional engagements between the two coun- tries, particularly Article 2 of the Hague Convention of 1907 relative to certain restrictions on the right of capture in maritime warfare, and Article 9 of the Geneva Convention of July 6, 1906, for the amelioration of the condition of the sick and wounded in the field, and the verbal agreement between the two Governments relative to the passengers on the Manouba. Indemnities to the private individuals interested in the steamer and its voyage were also demanded. The Italian Government agreed to deliver the Turkish subjects to the French consul at Cagliari to be returned upon the responsibility of France to the place from which they sailed. It took issue, however,
342 1HE HAGUE COURT REPORTS
with the other French demands, and made a counter-claim for the violation of its belligerent right under international law to ascertain the character of individuals suspected of being soldiers of the enemy found on board neutral commercial vessels, and for reimbursement of expenses incurred on account of the seizure of the vessel.
The controversy was referred under a compromis dated March 6, 1912,1 to an arbitral tribunal selected from the members of the Per- manent Court of Arbitration at The Hague. The tribunal was com- posed of K. Hj. L. Hammarskjold of Sweden; Louis Renault of France; Guido Fusinato of Italy; J. Kriege of Germany, and Baron Michel de Taube of Russia. Its sessions began March 31, 1913, and ended May 6, 1913. In an award rendered on the latter date, the tri- bunal held that there was a misunderstanding between the two Gov- ernments as to the exemption of the vessel which carried these pas- sengers from the right of search, and that, in the absence of a special understanding, the Italian naval authorities were justified in acting according to the common international law; that they had sufficient reasons to believe that some of the passengers were enemy soldiers and had a right to demand and compel their surrender, but that they had no right to capture the vessel and force it to leave its course unless for the purpose of arresting the captain for failure to comply with such demand; that no such demand having been made, the cap- ture and conveyance of the ship to Cagliari were illegal. The tribunal further held, however, that the illegality of the capture did not affect the right of the Italian authorities at Cagliari to demand and compel the surrender of the Turkish passengers and to arrest them, and upon refusal of the demand by the captain to detain the vessel until it was complied with. The detention of the vessel at Cagliari and the arrest of the passengers were therefore held to be legal. The national claims of both Governments were disallowed, but a small indemnity was awarded to France for the losses sustained by the private individuals interested in the vessel and its voyage by reason of its illegal capture and convoy to Cagliari, from which indemnity the tribunal deducted the amount of expenses incurred by the Italian Government in guard- ing the vessel during its sequestration at Cagliari to compel the sur- render of the passengers.
AWARD OF THE TRIBUNAL
Award of the arbitral tribunal in the case of the French mail steamer "Manouba" — The Hague, May 6, 1913?
Considering that by an agreement dated January 26, 19 12,8 and
*Post, p. 351.
^American Journal of International Law, vol 7, p. 629. For the original French text, see Appendix, p. 565. Mnfe, p. 339.
THE MANOUBA CASE 343
by a compromis dated the 6th of March following,1 the Government of the French Republic and the Royal Italian Government have agreed to submit to an arbitral tribunal composed of five members the decision of the following questions :
1. Were the Italian naval authorities, in general and in the special circumstances under which the act was committed, within their rights in proceeding, as they did, to the capture and the temporary detention of the French mail steamer Manouba, as well as to the arrest of the twenty-nine Ottoman passengers who were on board?
2. What should be the pecuniary or other consequences follow- ing the decision of the preceding question?
Considering that, in accordance with this compromis the two Governments have chosen, by common consent, the following mem- bers of the Permanent Court of Arbitration to constitute the arbitral tribunal :
His Excellency Guido Fusinato, Doctor of Law, Minister of State, formerly Minister of Public Instruction, honorary professor of international law in the University of Turin, Deputy, Councilor of State ;
Mr. Knut Hjalmar Leonard Hammarskjold, Doctor of Law, for- merly Minister of Justice, formerly Minister of Public Worship and Instruction, formerly Envoy Extraordinary and Minister Pleni- potentiary at Copenhagen, formerly President of the Court of Ap- peals of Jonkoping, formerly professor in the Faculty of Law of Upsala, Governor of the Province of Upsala;
Mr. Kriege, Doctor of Law, at present Confidential Counsel of Legation and Director in the Department of Foreign Affairs, Pleni- potentiary in the German Federal Council;
Mr. Louis Renault, Minister Plenipotentiary, member of the In- stitute, professor in the Faculty of Law of the University of Paris and of the £cole Libre des Sciences Politiques, Jurisconsult of the Ministry of Foreign Affairs;
His Excellency Baron Michel de Taube, Doctor of Law, Assist- ant to the Minister of Public Instruction of Russia, Councilor of State;
That the two Governments have, at the same time, designated Mr. Hammarskjold to perform the duties of president.
p. 351.
344 THE HAGUE COURT REPORTS
Considering that, in accordance with the compromis of March 6, 1912, the cases and counter-cases have been duly exchanged by the parties and communicated to the arbitrators;
Considering that the tribunal, constituted as specified above, met at The Hague on March 31, 1913 ;
That the two Governments, respectively, have appointed as agents and counsel,
The Government of the French Republic:
Mr. Henri Fromageot, advocate in the Court of Appeal of Paris, assistant jurisconsult in the Ministry of Foreign Affairs, Counselor in international law of the Navy Department, agent ;
Mr. Andre Hesse, advocate in the Court of Appeal of Paris, member of the Chamber of Deputies, counsel ;
The Royal Italian Government :
Mr. Arturo Ricci-Busatti, Envoy Extraordinary and Minister Plenipotentiary, Chief of the Bureau of Disputed Claims and of Legislation of the Royal Ministry of Foreign Affairs, agent;
Dr. Dionisio Anzilotti, professor of international law in the University of Rome, counsel.
Considering that the agents of the parties have presented the following demands to the tribunal, to wit :
The agent of the Government of the French Republic :
May it please the tribunal
As to the first question propounded by the compromis,
To say and decide that the Italian naval authorities were not, in general and in the special circumstances under which the act was committed, within their rights in proceeding, as they did, to the capture and temporary detention of the French mail steamer Ma- nouba, as well as to the arrest of the twenty-nine Ottoman pas- sengers who were on board.
As to the second question propounded by the compromis,
To say that the Royal Italian Government shall be obliged to pay to the Government of the French Republic the sum of one franc damages, as moral reparation for the offense against the honor of the French flag;
To say that the Royal Italian Government shall be obliged to pay to the Government of the French Republic the sum of one hundred
THE MANOUBA CASE 345
thousand francs, as penalty and reparation for the political and moral injury resulting from the violation by the Royal Italian Gov- ernment of its general and special conventional engagements, par- ticularly the Convention of The Hague of October 18, 1907, rela- tive to certain restrictions on the right of capture in maritime war- fare, Article 2; the Geneva Convention of July 6, 1906, for the amelioration of the condition of the wounded and sick in armies in the field, Article 9 ; and the verbal agreement between the two Gov- ernments of January 17, 1912, relative to the control of the passen- gers on board the steamer Manouba;
To say that the said sum will be paid to the Government of the Republic for the benefit of such work or institution of international interest as it shall please the tribunal to designate;
To say that the Royal Italian Government shall be obliged to pay to the Government of the French Republic the sum of one hun- dred and eight thousand, six hundred and one francs, seventy cen- times, the amount of the indemnities claimed by the private indi- viduals interested either in the steamer Manouba or in its voyage;
Further, and in case the tribunal does not consider itself suffi- ciently enlightened upon this last count,
To say, before coming to a decision, that one or more of its members, whom it shall commission for that purpose, shall proceed, in the chamber where its deliberations take place, to examine the claims of the private individuals interested ;
In any case, and by the application of Article 9 of the compromis,
To say that, upon the expiration of three months from the date of the award, the sums which the Royal Italian Government is to pay and which shall not have been paid shall bear interest at the rate of four per cent per annum.
And the agent of the Royal Italian Government :
May it please the tribunal
As to the first question propounded by the compromis,
To say and decide that the Italian naval authorities were fully within their rights in proceeding, as they did, to the capture and temporary detention of the French mail steamer Manotiba, as well as to the arrest of the twenty-nine Ottoman passengers who were
346 THE HAGUE COURT REPORTS
suspected of being soldiers and whose true character the Italian Government had the right to ascertain.
Consequently and as to the second question,
To say and decide that no pecuniary or other consequences should be imposed upon the Italian Government because of the capture and temporary detention of the French mail steamer Manouba;
To say and decide that the French Government was wrong in its contention that the Ottoman passengers who fell legally into the hands of the Italian authorities should be surrendered to the French Government ;
To say that the Government of the French Republic shall be obliged to pay to the Royal Government the sum of one hundred thousand francs as a penalty and reparation for the material and moral injury resulting from the violation of international law, es- pecially in so far as the right of the belligerent to ascertain the character of individuals suspected of being soldiers of the enemy, who were found on board neutral commercial vessels, is concerned ;
To say that the said sum shall be paid to the Royal Italian Gov- ernment, to be devoted to such work or such institution of inter- national interest as it shall please the tribunal to indicate;
Further and in case the tribunal should not consider that this kind of penalty should be admitted ;
To say that the Government of the Republic shall be bound to make amends for the wrong done the Royal Italian Government in such manner as it shall please the tribunal to indicate;
In any event,
To say that the Government of the Republic shall be obliged to pay to the Royal Italian Government the sum of four hundred and fourteen francs, forty-five centimes, the expenses incurred on ac- count of the seizure of the Manouba;
To say that, upon the expiration of three months from the date of the award, the sums to be paid by the Government of the Republic and not yet paid shall bear interest at the rate of four per cent per annum.
Considering that, after the tribunal had heard the oral statements of the agents of the parties and the explanations which they fur- nished at its request, the arguments were duly declared closed.
THE MANOUBA CASE 347
IN THE MATTER OF FACT
Considering that the French mail steamer Manouba, of the (70 w- pagnie de Navigation Mixte, in the course of a regular trip between Marseilles and Tunis, was stopped off the Island of San Pietro on the 18th of January, 1912, about eight o'clock in the morning by the torpedo boat destroyer Agordat of the Royal Italian Navy ;
Considering that, after ascertaining the presence of twenty-nine Turkish passengers on board the said steamer, which passengers were suspected of belonging to the Ottoman army, the Manouba was captured and conducted to Cagliari;
Considering that, having arrived at this port on the same day, about five o'clock in the evening, the captain of the Manouba was summoned to deliver the above-mentioned passengers to the Italian authorities and that, upon his refusal, these authorities proceeded to seize the steamer;
Considering, finally, that, upon the request of the vice-consul of France at Cagliari, the twenty-nine Turkish passengers were de- livered to the Italian authorities on January 19 at half-past four in the afternoon, and that the Manouba was then released and resumed its trip to Tunis on the same day at 7 :20 p.m.
IN THE MATTER OF LAW
Considering that, if the French Government believed, given the circumstances under which the presence of Ottoman passengers on board the Manouba was made known to it, that, taking into consid- eration the promise that the character of said passengers would be verified, the Manouba was exempted from the right of search or coercion on the part of the Italian naval authorities, it is established that the Italian Government did not in good faith understand the matter in the same way;
That, consequently, in the absence of a special agreement between the two Governments, the Italian naval authorities were justified in acting according to the common law ;
Considering that, according to the tenor of the compromis, the proceeding of the Italian Government includes three successive phases, to wit : the capture, the temporary detention of the Manouba,
348 THE HAGUE COURT REPORTS
and the arrest of the twenty-nine Turkish passengers who were on board;
That it is proper to examine in the first place the legality of each of these three phases, considered as isolated acts and independent of the above-mentioned proceeding as a whole ,
In this order of things,
Considering that the Italian naval authorities had, at the time of the capture of the Manouba, sufficient reason to believe that the Ot- toman passengers who were on board were, some of them at least, military persons enrolled in the enemy's army;
That, consequently, these authorities had the right to compel the surrender of these passengers to them ;
Considering that they had a right to summon the captain to de- liver them, as well as to take the measures necessary to compel him to do so, or to take possession of these passengers in case of his refusal ;
Considering, on the other hand, that, even admitting that there might have been grounds for believing that the Ottoman passengers formed a military troop or detachment, there was no reason for calling in question the good faith of the owner and of the captain of the Manouba;
Considering that, under these circumstances, the Italian naval au- thorities were not within their rights in capturing the Manouba and in compelling it to leave its course and follow the Agordat to Cag- liari, unless it were for the purpose of arrest after the captain had refused to obey a summons to surrender the Ottoman passengers ;
That no summons of that kind having been made before the capture, the act of capturing the Manouba and taking it to Cagliari, was not legal ;
Considering that, as the summons made at Cagliari was without immediate effect, the Italian naval authorities had the right to take the necessary measures of compulsion, and specifically, to detain the Manouba until the Ottoman passengers were delivered to them ;
That the detention effected was legal only to the extent of a tem- porary and conditional sequestration ;
Considering, finally, that the Italian naval authorities had the right to compel the surrender of the Ottoman passengers and to arrest them.
THE MANOUBA CASE 349
In so far as the proceeding as a whole is concerned,
Considering that the three phases, of which the single proceed- ing provided for by the compromis is composed, should be judged by themselves, and the illegality of any one of them should not, in this case, have any bearing on the regularity of the others;
That the illegality in capturing and taking the Manouba to Cag- liari did not vitiate the successive phases of the act;
Considering, moreover, that the capture could not be legalized by the regularity, relative or absolute, of these last phases con- sidered separately.
Upon the request that the Royal Italian Government be con- demned to pay as damages :
1. The sum of one franc for the offense against the French flag;
2. The sum of one hundred thousand francs as reparation for the moral and political injury resulting from the failure to observe international common law and the conventions which are mutually binding upon both Italy and France,
And upon the request that the Government of the French Repub- lic be condemned to pay the sum of one hundred thousand francs as a penalty and reparation for the material and moral injury resulting from the violation of international law, specifically in so far as concerns the right of the belligerent to verify the character of indi- viduals suspected of being soldiers of the enemy, who are found on board neutral vessels of commerce,
Considering that, in case a Power has failed to fulfil its obliga- tions, whether general or special, to another Power, the establish- ment of this fact, especially in an arbitral award, constitutes in itself a severe penalty;
That this penalty is increased, if there be occasion, by the pay- ment of damages for material losses ;
That, as a general proposition and leaving out of consideration special circumstances, these penalties appear to be sufficient ;
That, also as a general rule, the imposition of a further pecuniary penalty appears to be superfluous and to go beyond the objects of international jurisdiction ;
Considering that, by the application of what has been stated, the circumstances of the present case do not justify such supplementary
350 THE HAGUE COURT REPORTS
penalty; that, without further examination, there is no reason for complying with the above-mentioned requests.
Upon the request of the French agent that the Royal Italian Gov- ernment be compelled to pay to the Government of the French Re- public the sum of one hundred and eight thousand, six hundred and one francs, seventy centimes, the amount of the indemnities claimed by private individuals interested either in the steamer Manouba or in its voyage;
Considering that an indemnity is due on account of the delay occasioned to the Manouba by its unwarranted capture and its con- voy to Cagliari, but the delay caused by the illegal refusal of the captain to surrender the twenty-nine Turkish passengers at Cagliari, as well as the fact that the vessel was not taken entirely out of its course to Tunis, should be taken into account ;
Considering that, if the Italian naval authorities effected the de- tention of the Manouba instead of the temporary and conditional sequestration, which was legal, it appears that in this matter the interested parties suffered no losses and damages ;
Considering that, taking account of these circumstances and also of the expense incurred by the Italian Government in guarding the detained vessel, the tribunal, after having heard the concurring explanations of two of its members charged by it with the investi- gation of the said claims, has decided upon four thousand francs as the amount due all those interested in the vessel and its voyage.
For these reasons the arbitral tribunal declares and pronounces as follows:
In so far as the proceeding as a whole, which is covered by the first question propounded by the compromis, is concerned,
The different phases of this proceeding should not be considered as connected with each other in the sense that the character of any one of them, in this case, should not affect the character of the others.
In so far as the various phases of the said proceeding considered separately are concerned,
The Italian naval authorities were not, in general and in the special circumstances under which the act was committed, within their rights in proceeding, as they did, to the capture of the French mail steamer Manouba and its convoy to Cagliari ;
THE MANOUBA CASE 351
When once the Manouba was captured and taken to Cagliari, the Italian naval authorities were, in general and in the special circum- stances under which the act was committed, within their rights in proceeding, as they did, to the arrest of the twenty-nine Ottoman passengers who were on board.
In so far as concerns the second question propounded by the compromis,
The Royal Italian Government shall be obliged, within three months from the present award, to pay to the Government of the French Republic the sum of four thousand francs, which, after de- ducting the amount due the Italian Government for guarding the Manouba is the amount of the losses and damages sustained, by reason of the capture of the Manouba and its convoy to Cagliari, by the private individuals interested in the vessel and its voyage. There is no occasion to comply with the other claims contained in the demands of the two parties.
Done at The Hague, in the building of the Permanent Court of Arbitration, May 6, 1913.
President: Hj. L. HAMMARSKJOLD
Secretary General: MICHIELS VAN VERDUYNEN Secre tary : ROELL
AGREEMENT FOR ARBITRATION
Compromis of arbitration relative to the questions raised by the capture and temporary detention of the French mail steamer "Manouba." — Signed at Paris, March 6,
The Government of the French Republic and the Royal Italian Gov- ernment, having agreed, on January 26, 1912,2 in application of the Franco-Italian arbitration convention of December 25, 1903, which was renewed December 24, 1908, to entrust an arbitral tribunal with the examination of the capture and temporary detention of the French mail steamer Manouba by the Italian naval authorities, particularly in the special circumstances under which that act was committed, and of the arrest of the twenty-nine Ottoman passengers who were on board, as well as with the duty of deciding the consequences which should follow,
1 Translation. For the original French text, see Appendix, p. 571. 2See ante, p. 339.
352 THE HAGUE COURT REPORTS
The undersigned, duly authorized for that purpose, have agreed upon the following compromis:
ARTICLE 1
An arbitral tribunal, composed as hereinafter stipulated, is charged with the settling of the following questions:
1. Were the Italian naval authorities, in general and in the special circumstances under which the act was committed, within their rights in proceeding, as they did, to the capture and temporary detention of the French mail steamer Manouba, as well as to the arrest of the twenty-nine Ottoman passengers who were on board?
2. What should be the pecuniary or other consequences, following the decision of the preceding question?
ARTICLE 2
The tribunal shall be composed of five arbitrators which the two Governments shall choose from among the members of the Permanent Court of Arbitration at The Hague, one of whom shall perform the duties of umpire.1
ARTICLE 3
On June 15, 1912, each party shall deposit with the Bureau of the Permanent Court of Arbitration fifteen copies of its memorial, with certified copies of all documents and papers which it intends to present in the case.
The Bureau shall guarantee their transmission without delay to the arbitrators and parties, to wit: two copies for each arbitrator, three copies for each opposing party ; two copies shall remain in the archives of the Bureau.
On August 15, 1912, each party shall deposit in the same manner as above, its counter-memorial with the papers appertaining thereto, and its final conclusions.
ARTICLE 4
Each of the parties shall deposit with the Bureau of the Permanent Court of Arbitration at The Hague at the same time that it deposits its memorial, a sum for the purpose of expenses, which shall be fixed by mutual agreement.
1See the supplementary agreement of April 4, 1912, ante, p. 340.
THE MANOUBA CASE 353
ARTICLE 5
The tribunal shall meet at The Hague, upon the convocation of its president, in the second fortnight of the month of September, 1912.
ARTICLE 6
Each party shall be represented by an agent whose duty it shall be to serve as intermediary between it and the tribunal.
The tribunal may demand that either agent furnish it, if necessary, with oral or written explanations, to which the agent of the opposing party shall have the right to reply.
ARTICLE 7
The French language shall be used by the tribunal. Each party may use its own language.
ARTICLE 8
The award of the tribunal shall be rendered with the least possible delay and in any case within thirty days following the closing of the debates. However, this period may be extended upon the demand of the tribunal and the consent of the parties.
ARTICLE 9
The tribunal is competent to regulate the conditions for the execu- tion of its award.
ARTICLE 10
On all points not covered by the present compromis, the stipulations of the Hague Convention for the pacific settlement of international disputes, of October 18, 1907, shall be applicable to the present arbitration. Done, in duplicate, at Paris, March 6, 1912.
(Signed) L. RENAULT (Signed) G. FUSINATO
THE ISLAND OF TIMOR CASE
between
THE NETHERLANDS and PORTUGAL Decided June 25, 1914
Syllabus
This arbitration grew out of a dispute between the Netherlands and Portugal over the boundaries of their respective possessions in the Island of Timor, which was partitioned between them by a treaty of April 20, 1859.1 In order to avoid the division of native tribes this treaty had left certain Dutch territory within the boundaries assigned to Portugal and vice versa, but as it later appeared desirable to abolish these so-called "enclaves," a convention was signed on June 10, 1893,2 for that purpose and for the establishing of the boundary in the clear- est manner. A commission acting under this convention reached an agreement upon most of the boundary in 1898-1899, and the disputed points were referred to a conference at The Hague, which on July 3, 1902, agreed upon a solution which was transformed into a diploma- tic convention on October 1, 1904.8 This convention settled the re- mainder of the boundary with the exception of a part of the Portu- guese enclave formerly within Dutch territory. As to this a theoretical line was drawn and a mixed commission appointed to survey and mark it. The commissioners after starting upon their work were unable to agree upon some of the geographical points which had been laid down for their guidance, and their labors were suspended. After a lengthy diplomatic correspondence between the foreign offices of the respective Governments an agreement was signed at The Hague on April 3, 1913,4 referring the disputed boundary to the decision of an arbitrator, according to the data to be furnished by the parties and on the basis of the general prjpciples of international law.
Mr. Charles fidouard Lardy, the Swiss Minister to France, was selected as arbitrator. He rendered an award on June 25, 1914, fixing the boundary in accordance with the contentions of the Netherlands.
Wost, p. 390 zPost, p. 393. *Post, p. 396. *Post, p. 387.
THE ISLAND OF TIMOR CASE 355
AWARD OF THE TRIBUNAL
Arbitral award rendered in execution of the compromis signed at The Hague, April 3, 1913, between the Netherlands and Portugal concerning the boundary of a part of their possessions in the Island of Timor. — Paris, June 25, 1914*
A dispute having arisen between the Royal Government of the Netherlands and that of the Portuguese Republic concerning the subject of the boundary of a part of their respective possessions in the Island of Timor, the two Governments, by a convention signed at The Hague, April 3, 19 13,2 of which ratifications were exchanged in the same city on July 31st following, decided as a last resort to refer its solution to an arbitrator, and accordingly by common ac- cord designated the undersigned.
To understand the sense and scope of the compromis of April 3, 1913, there is need succinctly to explain the negotiations that pre- ceded that compromis.
I. HISTORICAL
The Island of Timor, the farthest east of the continuous series of the Sonde Islands and the nearest to Australia, was discovered by the Portuguese in the sixteenth century; the island measures about 500 kilometers in length from west to east by a maximum width of 100 kilometers. A lofty chain of mountains, certain sum- mits of which reach an altitude of nearly 3,000 meters, divides this island lengthwise into two slopes. The eastern part of the island, with an approximate area of 19,000 square kilometers, and a popu- lation of about 300,000 inhabitants, is Portuguese. The western part, with a population estimated in 1907 of 131,000 inhabitants and an area of about 20,000 square kilometers, is under the sov- ereignty of the Netherlands, with the exception of the "Kingdom of Okussi and Ambeno," situate on the northwest coast and sur- rounded on all sides by Dutch territory except on the shore.
The name of "kings" given by the Portuguese to the chieftains of tribes is explained by the fact that in the native tongue they are called leorey; the final syllable of this word has been translated into
^American Journal of International Law, vol 9, p. 240. For the original French text, see Appendix, p. 574. *Post, p. 387.
356 THE HAGUE COURT REPORTS
Portuguese by the word Rey. The Dutch give these chieftains the more modest title of radjahs.
This territorial partition between the Netherlands and Portugal rests on the following agreements :
April 20, 1859,1 a treaty signed at Lisbon and duly ratified in the course of the summer of 1860, had defined the respective frontiers of the middle of the island, but had left existing (Article 2) the Dutch enclave of Maucatar in the midst of Portuguese territory, and the Portuguese enclave of Oikoussi in the midst of Dutch terri- tory in the west of the island. It was stipulated (Article 3) that the enclave of Oikoussi consists of the State of Ambenu wherever the "Portuguese flag is raised, the State of Oikoussi proper and that of Noimuti." See annex A, page 31 .*
By another convention signed at Lisbon June 10, 1893,2 and duly ratified, the two Governments, "desiring to settle on conditions most favorable to the development of civilization and commerce" their relations in the archipelago of Timor, agreed "to establish the boun- dary of their possessions in the clearest and most exact fashion" in that island and "to cause the enclaves now existing to disappear" (Preamble and Article 1). A commission of experts was to be designated to the end of "formulating a proposition capable of serv- ing as the basis for the conclusion of a further convention fixing the new boundary line in the said island" (Article 2). In case of difficulties the two parties engaged "to submit to the decision of an ... arbitrator" (Article 7). See annex B, page 34. 2
This mixed commission repaired to the premises and agreed in 1898-1899 on most of the boundary. Notwithstanding, a consider- able number of divergencies persisted as to the principal frontier in the middle of the Island of Timor as well as to the frontier of the Kingdom of Okussi-Ambenu in the western part of the island. The map annexed8 under No. II indicates the respective claims. A conference was assembled at The Hague from June 23 to July 3, 1902, to attempt their solution. It decreed July 3, 1902, a plan
iPost. p 390. *Post, p. 393.
*For annexed maps, see opposite p. 386.
THE ISLAND OF TIMOR CASE 357
which was transformed into a diplomatic convention signed at The Hague, October 1, 1904, and duly ratified. See annex Cf page 37.1
A summary of the results of the Convention of 1904 is shown on the transparent map annexed under No. I ; the superposition of the transparent map No. I on the map No. II shows what Portugal obtained, in the center of the Island of Timor, the Dutch enclave of Maukatar, and what the Netherlands obtained in the same region, Tahakay, and Tamira Ailala. On the other hand, in the northwest of the Island of Timor and to the south of the territory designated by the treaty of 1859, under the name of Oikussi enclave, the Neth- erlands obtained Noimuti. Finally, the controverted eastern limit of the territory of Oikussi-Ambeno is fixed theoretically according to a line A-C, which was to be surveyed and indicated on the grounds within the shortest possible delay" (Acts of the conference of 1902, sessions of June 27, pages 10 and 11, and of June 28, page 12; convention of October 1, 1904, Article 4). The line A-C allowed by the conference was fixed in Article 3, No. 10 of the conven- tion of 1904 in the following terms: "From this point" (the conflu- ence of the Noel Bilomi with the Oe-Sunan) "the boundary follows the thalweg of the Oe-Sunan, runs as much as possible across Nipani and Kelali (Keli), strikes the source of the Noel Meto, and follows the thalweg of that river to its mouth."
All seemed ended, when the boundary commissioners, having ar- rived at the premises in June 1909, for the work of setting the metes of the eastern frontier of Oikussi-Ambeno could not agree and decided to refer the matter to their Governments. The two Governments were none the more able to agree and decided to have recourse to arbitration. What was this difficulty that the boundary commissioners encountered?
II. THE DIFFICULTY WHICH INSTIGATED THE ARBITRATION
In proceeding to the work of bounding the eastern frontier of Oikussi-Ambeno the commissioners had commenced in the north, on the coast, and ascended in a southerly direction the course of the Noel Meto river, which was to serve as a frontier from its mouth
, p. 3%.
358 THE HAGUE COURT REPORTS
to its source. These operations took place between the 1st and the 10th of June, 1909, and a mete was placed at the source of the Noel Meto. The source being obstructed by some steep cliffs impossible to cross, the commissioners decided on a general reconnaissance be- tween the northern and southern parts of the country still to be bounded, that is to say, between the source of the Noel Meto, in the north, and of the Noel Bilomi, in the south.
A disagreement first arose in the north: The map (see annex III) signed in 1904, at the same time as the convention, bore the name Kelali accompanied between parentheses by the word Kelt. The Dutch delegates maintained the word Keli meant on the summit of Mount Kelali, a particular point, situated to the west of the Noel Meto between two "peaked" rocks, and which had been indicated by the natives of Tumbaba (Dutch) as the boundary between them and the natives (Portuguese) of Ambeno; according to the Dutch commissioners this point is a "magnificent" natural boundary which nearly follows the limit described on the map of 1904. The Portu- guese commissioners, on the contrary, propose "to follow. . . .some thalwegs in the country to the east of the line proposed by the Dutch delegates, starting from the same mete" placed at the source of the Noel Meto. The commission decided to survey the two lines and to leave the solution to superior authorities.
In the southern part, on the Bilomi river, the commissioners state, in their session of June 17, 1909, that they followed west to east the course of the Nono Nisi (or Nise), then the course of the Noel Bilomi, and that they now "reached the spot (where the com- mission of 1899 had terminated its work) where the survey must be continuued to the north." That point had been designated in the convention of 1904, Article 3, Nos. 9 and 10, and on the map an- nexed, as the confluence of the Noel Bilomi and the Oe Sunan. "The four delegates state that at that place there are two affluents coming from the north, but neither is called the Ot Sunan."
The Dutch delegates then explain that the country situated be- tween the two affluents is called Sunan, that moreover, they do not recognize any affluent of the Noel Bilomi bearing the name of Oe Sunan and that none exists ; thus they insist the frontier line be
THE ISLAND OF TIMOR CASE 359
surveyed toward the north, starting from the point designated on the maps of 1899 and 1904.
The Portuguese delegates observe that a river called Oe Sunan or Oil Sunan, which is not, it is true, an affluent of the Bilomi, exists farther to the east and has its source "hard by the Bilomi."
The commissioners unanimously decided to survey the two lines, "starting from a point" indicated on the maps of 1899 and 1904, and "where the commission of 1899 terminated its work'' that is, the line proposed by the Dutch delegates in a northerly direction and the line desired by the Portuguese in an easterly direction (ses- sion of June 17, 1909, First Portuguese Case, page 27).
At the session of June 21, 1909, and during the course of the survey of the frontier line proposed by the Portuguese delegates in the easterly direction ascending the Noel Bilomi river, "the four delegates state uanimously that they have not met an affluent (of the Noel Bilomi) called the Oe-Sunan." The Dutch delegates observe that the Bilomi has changed its name, in this region, to which their Portuguese colleagues answer "that the Bilomi river still exists, but that, following the native customs, it bears the name of the country it crosses." Finally and above all, the Portuguese delegates observe that a short distance from the Bilomi, on the north bank, is one Mount Kinapua, on the opposite slope of which is a river bearing the name of Oe Sunan, and which flows north. It would suffice to follow the course of that river, then to ascend the Noi Fulan river and finally to connect the source of the latter with the source of the Noel Meto already recognized by the mixed commis- sion.
The Dutch delegates declare it useless to proceed to a reconnais- sance on this river, for Mount Kinapua and the boundary that would result from the Portuguese proposition would be outside the terri- tory which was disputed in 1899; Mount Tasona figures on the map of 1899 on the extreme eastern limit of the Portuguese claims of that time, claims which the treaty of 1904 threw aside; thus there could be no question of a boundary going still farther east.
The labors of the mixed commission were suspended and the question, brought within the domain of diplomacy, gave place to a long exchange of correspondence between the cabinets of The Hague and Lisbon.
360 THE HAGUE COURT REPORTS
This correspondence ended in the agreement of 19 13,1 entrusting the arbitrator with the commission of deciding, according to "the data furnished by the parties" and "on the basis of the general prin- ciples of international law, how ought to be fixed conformably with Article 3, No. 10 of the convention concluded at The Hague, October 1, 1904, . . . .the boundary starting from the Noel Bilomi to the source of the Noel Meto." See annex D, page 41 .*
III. THE PORTUGUESE POINT OF VIEW
The principal arguments invoked by the Government of the Portuguese Republic in favor of the thesis supported by its boun- dary commissioners can be summarized as follows :
1. At the point where the work of the 1899 boundary was stopped, and where, according to the treaty of 1904 and according to the map annexed thereto, the Noel Bilomi should receive an affluent with the name of Oe Sunan, it is recognized by common agreement that no affluent by that name exists.
2. There exists, on the contrary, farther to the east, a river Oe Sunan, which is not, it is true, an affluent of the Bilomi, but which takes its source on the north slope of Kinapua Mountain very close to the river Bilomi ; on Mount Kinapua there is a mete proclaimed by numerous native chieftains as having served as the recognized boundary between the Portuguese Ambenos and the Dutch Tumbabas. From the same Mount Kinapua a brook runs toward the Bilomi, and these two water-courses seem to continue each other from the summit. According to the native chieftains, the course of this river Oe-Sunan is the historical and natural boun- dary between the Portuguese Ambenos on one side, and the Dutch Tumbabas and Amakonos on the other side.
3. The same native chieftains include in Ambeno all that region comprised between the river Oe Sunan on the east, the river Ni Fullan on the north and the incontestibly Portuguese territory of Oikoussi- Ambeno west of Mounts Kelali and Netton. On a private map published at Batavia the name Ambeno is found inscribed alto- gether in that part wrongly claimed to-day by the Netherlands.
*Post, p. 387.
THE ISLAND OF TIMOR CASE 361
4. The treaty of 1859 rests on the principle that native States should not be separated, parcelled out; the boundary-line proposed by the Netherlands cuts the Ambenos' territory and would deprive those natives of their pasture and garden lands that are located to the east of the frontier and in Dutch territory.
5. Nothing proves that the boundary to be effected ought neces- sarily to commence where the work of bounding had been suspended in 1899, following hostilities among the natives, and marked on the maps at the confluence of the Bilomi and the Oe Sunan brook, which in reality does not exist at that spot. There are two affluents at that spot; the Kamboun and the Nono-Offi. Why follow the course of the Kamboun to the north rather than that of the Nono- Offi, which comes from the northeast and spills into the Bilomi at that point?
By the maps of 1899 and 1904, in the opinion of the Portuguese Government, it was desired to give the boundary commissioners only "a drawing designed to fix ideas, and a vague and simple indi- cation of what ought to be settled later."
The true intention of the signatories of the treaty of 1904 was to follow the course of the Oe 'Sunan, where it is in reality, that is to say, farther east. Thus, in the sense of the treaty, nothing hinders ascending the Bilomi to the point nearest the source of the true Oe Sunan, a source so near the course of the Bilomi that it is almost an affluent.
6. The line proposed by the Netherlands, which according to the treaty of 1904 ought "to cross Nipani and Kelali (Keli) as much as possible," does not cross Nipani but touches only Fatu Nipani, that is to say, the western extremity of Nipani. Hence it does not cor- respond to the program of 1904.
7. The line proposed by the Netherlands does not constitute a natural frontier, while that suggested by Portugal follows water- courses nearly all the way.
IV. THE DUTCH POINT OF VIEW
The principal arguments of the Royal Government of the Nether- lands may be summarized as follows :
1. The treaty of 1859 did not prescribe in any imperative way
362 THE HAGUE COURT REPORTS
that native territories ought not to be divided or parcelled. On the contrary, it assigned to Portugal "the State of Ambenu wherever the Portuguese flag is raised there," thus sanctioning not only the division of a native State, but precisely the division of the very State of Ambenu, and that in the following terms : "The Nether- lands cedes to ... Portugal that part of the State of Ambenu or Ambeno which for several years has flown the Portuguese flag." More than this, the treaty of 1859 could have been, and has been modified effectively by the subsequent treaties, treaties which alone ought to be taken into consideration to-day in those places where they have modified the treaty of 1859.
2. No uncertainty exists as to the point where the boundary commissioners of 1899 stopped. That point served as a basis for the negotiations of 1902, and was marked on the map (annex III) signed at that time by the negotiators of the two countries as to be adjoined to the draft of the treaty. That draft of 1902 became the treaty of 1904. From this point and no other begins line A-C, ad- mitted in 1902 as properly placing the frontier (map annex I) That line A-C extends from this point north as far as the source of the river Noel Meto, and the frontier ought then to follow that water-course as far as its embouchure into the sea in the north.
The location of the source of the Noel Meto was recognized con- tradictorily in 1909 : a mete was placed there by common agreement. The discussion concerned only the survey between that source and point A situate at the spot where the commissioners stopped in 1899.
3. On the official map of 1899 (annex IV), as on the official map of 1904 (annex III), an affluent, to which, by an error that the Netherlands does not contest, has been given the name of Oe Sunan, is represented as coming from the north to the point in question. This river, which in reality bears among the Tumbabas the name of Kabun, and among the Ambenos that of Leos, cor- responds wholly to the intention of the contracting parties, which was to follow, beginning with point A, an affluent coming from the north in the direction A-C. The error of name has the less sig- nificance since very frequently in that region the water-courses have several names, or change their names, or bear the name of the coun- try they traverse: the region east of Kabun, or Leos (the Oe Sunan
THE ISLAND OF TIMOR CASE 363
of 1904) has, according to the Portuguese Government, the name of Hue-Son, of analogous sound, and, according to the Dutch com- missioners, that of Sunan, which explains the error of the commis- sioners.
4. The native chieftains of Amakono (Dutch) declared (mixed commission, session of February 21, 1899) that their country com- prises all the region "situated between the Oe Sunan, Nipani, Kelali- Keli, and the Noel Meto (on the west), the sea of Timor (on the north), the Noel Boll Bass, the Humusu and Kin Napua summits (on the east), Tasona, the Noel Boho and the Noel Bilomi (on the south)/' Now the western frontier here described and indicated in 1899 as separating the Amakanos (Dutch) from Ambeno (Portu- guese) is precisely that sanctioned by the treaty of 1904. The Oe Sunan which figures there can be only the water-course to which mistakenly but by common agreement this name was given in the official maps of 1899 and 1904, that is to say, a water-course situ- ated west of the disputed territory, and not the pretended Oe Sunan now pleaded by Portugal, which is situated on the eastern frontier of the disputed territory. Hence this is the very water-course, no matter what its name, situated to the west of the said territory, which the parties agreed to adopt as a boundary.
The proof that Portugal could not have had in view in 1899 and 1904 the eastern stream to which it now gives the name of Oe Sunan, is furnished by the fact that in the session of February 21, 1899, its commissioners proposed as a boundary a line starting from the point where the stream called Oe Sunan spills into the Bilomi and then ascending the Noel Bilomi easterly as far as Nunkalai (next crossing Tasona and from Kin Napua proceeding northerly as far as Humusu and to the source of the Noel Boll Bass, of which the course would have served as a frontier as far as its embouchure into the sea). This Portuguese proposition of 1899 would be un- intelligible if there were a question of any other stream than that figuring on the official maps of 1899 and 1904 with the name of Oe Sunan ; how could there be a question of another river Oe Sunan situated east of Nunkalai since Nunkalai is really west and not east of this new Oe Sunan discovered by the Portuguese?
364 THE HAGUE COURT REPORTS
5. Two inquiries recently instituted by the Dutch authorities of the Island of Timor confirmed, moreover, that no river by the name of Oe Sunan rises on Mount Kinapua ; the stream that rises on the north slope, at a certain distance from the summit, has the names Poeamesse and Noilpolan, and at Fatoe Metassa (Fatu Mutassa of the Portuguese) spills into the Noel Manama, the Ni-Fullan of the Portuguese maps (second Dutch Case, No. VII, page 6).
6. Quite precisely, the line proposed by the Netherlands does not traverse the territory of Nipani, but the treaty of 1904 does not require that. It stipulates that the line designed to unite the sources of the Oe Sunan and the source of the Noel Meto shall cross "Nipani as much as possible." As the territory to be bounded was unexplored, the words "as much as possible" were justified; in fact, the line suggested by the Netherlands, if at all it crosses the terri- tory of Nipani, crosses the western extremity called Fatu Nipani. Now, according to the declarations recorded in the proces-verbal of the boundary of February 21, 1899, the natives, in designating the Oe-Sunan, Nipani, Kelali, and the Noel Meto as the eastern frontier of Okussi-Ambeno (Portuguese) and as the western fron- tier of Amakono (Dutch) had in view the rocky pile of Fatu Nipani, forming the western end of Nipani.
7. The frontier proposed by the Netherlands is a natural frontier formed by a chain of mountains separating the water-courses all the way.
It was never prescribed or recommended in 1902-1904 absolutely to follow water-courses as a boundary, and, on the northern frontier of Okussi-Ambeno, bounds have been placed by common agreement in several places, notably when the line passes from one river basin into another. (See especially Article 3 of the convention of 1904, Nos. 2, 3, and 4.1)
A few metes will suffice to designate the frontier on the ridge line proposed by the Netherlands.
The survey claimed by Portugal, moreover, would itself also require metes in the region of Mount Kinapua, between the Bilomi and the pretended new Oe Sunan, and elsewhere in the region be- tween the source of the Noel Meto and the stream to which the
*Post, p. 397.
THE ISLAND OF TIMOR CASE 365
Portuguese give the name Ni-Fullan, that is to say, at the two ends of the Portuguese survey.
8. The line that Portugal proposes to-day reproduces the sub- stance of its claims of 1899 and 1902 in that region. Now, it is incontestable that by accepting the line A-C in the conference of 1902 and incorporating it in the treaty of 1904 Portugal ceded the territory to which formerly it made pretensions. Equitably it could not claim that same territory to-day.
V. THE RULES OF LAW APPLICABLE
According to Article 2 of the com pro mis, the arbitrator is to base his decision not only on the treaties in force between the Nether- lands and Portugal relative to the boundary of their possessions in the Island of Timor, but also on the "general principles of inter- national law."
It is almost superfluous to call these principles to mind.
Heffter, V olkerrccht , section 94, for example, is of this opinion : "Every treaty binds to a complete and loyal execution not only of what literally has been promised but that to which a party has bound itself, and also of what is conformable to the essence of any treaty whatsoever as to the harmonious intention of the contracting Par- ties (that is to say, what is called the spirit of treaties)." Heffter adds, section 95 : "In case of doubt, treaties ought to be interpreted conformably with the real mutual intention, and conformably to what can be presumed, between parties acting loyally and with reason, was promised by one to the other according to the words used."
Rivier, Principes du droit des gens, II, No. 157, expresses the same thought in these terms : "Above all the common intention of the parties must be established: id quod actum est . . . Good faith prevailing throughout this subject, treaties ought not to be interpreted exclusively according to their letter, but according to their spirit. . . . Principles of treaty interpretation are, by and large, and mutatis mutandis, those of the interpretation of agree- ments between individuals, principles of common sense and experi- ence, already formulated by the Prudents of Rome." (Ulpien, L. 34, in Digest de R. J. 50. 17: "Semper in stipulationibus et in cetius contractibus id sequimur quod actum est."}
366 THE HAGUE COURT REPORTS
Between individuals, the rules reverted to by Rivier were formu- lated in the principal codes in terms sufficiently precise to be used as commentaries :
Code civil frangais, neerlandais, etc., Articles 1156-1157. "In conventions one should seek to find what the common intention of the contracting parties was, rather than to stop with the literal sense of the words. When a clause is susceptible of two meanings it should be interpreted in that meaning which gives it some effect, rather than in that meaning which produces no effect." German Civil Code of 1896, Article 133 : "To interpret a declaration of will, it is necessary to seek the actual will and not to be content with the literal meaning of the expression" (Bei der Auslegung einer Willenserklarung ist der wirkliche Wille zu erforschen und nicht an dem buchstablichen Sinne dcs Ausdrucks "zu ha ft en"). Portuguese Civil Code of 1867, Article 684. Swiss Code des Obligations of jp/i, Article 18: "To appreciate the character and clauses of a contract, there is occasion to look for the actual common intention of the parties, without dwelling on inexact names or expressions of which use might have been made, either erroneously, or to disguise the true nature of the convention." It is useless to dwell on the entire coincidence of private and international law in this point.
It now remains only to apply these rules to the circumstances of the case and to seek to find what the actual and mutual intention of the Netherlands and Portugal was at the time of the negotiations of 1902 that ended in the convention of 1904.
VI. THE INTENTION OF THE PARTIES IN SIGNING THE CONVEN- TION OF 1904
1. The purpose of the treaty of Lisbon of June 10, 1893, had been to seek to establish a clearer and more exact boundary of the respective possessions in the Island of Timor, and to cause "the enclaves now existing" to disappear (Article 1). The "enclaves" figuring under this name in the previous treaty signed at Lisbon, April 20, 1859, were those of Maucatar (Article 2t paragraph 1) and of Oi Koussi (Article 2, paragraph 2, and Article 3, para- graph 1).
When in June, 1902, the delegates of both Governments met at
THE ISLAND OF TIMOR CASE 367
The Hague to seek to reconcile the diverging propositions of the boundary commissioners sent to the premises in 1898-1899, the dele- gates immediately agreed to grant Portugal the Dutch enclave of Maucatar at the center of the Island of Timor, and to the Nether- lands the Portuguese enclave of Noimuti to the south of the "king- dom" of Ambeno. In the session of June 26th the Portuguese de- manded, in the middle of the island, all the part of the territory of Fialarang, situate east of the river Mota Bankarna (see map annex II) ; they maintained further that the Kingdom of Ambeno, being bounded by the sea, could not be considered as an enclave any more than Belgium, Portugal, or the Netherlands, and so this unques- tionably could not te granted to the Netherlands ; they also claimed for Ambeno all the hinterland of the coast between the mouths of the Noel Meto and the Noel Boll Bass. This hinterland was to ex- tend southerly as far as the river Bilomi and follow that river from west to east between the point at which the boundary commission- ers stopped, in the west, in 1899 and, in the east, a place called Nun- kalai on the map at that time drawn up in common by the boundary commissioners of the two countries. The limits of the disputed territory having been designated by the four letters A, B, C, D on a map (see annex II) presented by the Dutch delegates to the conference of 1902, the discussion turned to the western line A-C, hallowed by the Netherlands, and the eastern line B-D claimed by Portugal.
On the map annexed here under No. IV the respective claims have been shown, as they result from the map signed in common by all the boundary commissioners at Koepang, February 16, 1899.
The Dutch delegates declared at the conference of June 26, 1902, that the chieftains of the territory of Fialarang, in the middle of the Island of Timor, refused absolutely to pass under the sov- ereignty of Portugal, so that it was not, or no longer was, possible to cut off that point which Dutch territory makes into Portuguese territory in that region (see map II).
The first Portuguese delegate replied that it was not necessary "to allow oneself to be guided too much by humanitarian motives toward the people of the Island of Timor; for petty causes these
368 THE HAGUE COURT REPORTS
tribes quit their native soil to set up elsewhere, and several times they have left the Dutch territory to establish themselves in Portu- guese territory, and vice versa." Finally the Portuguese delegate renounced the territory of Fiamarangs in the middle of the Island of Timor, but asked that the western frontier of Oikoussi be fixed "according to the proposition of the Dutch commissioners of 1899." (See this proposition in the proces-verbdl of the session held at Koepang, February 8, 1899, in the first Portuguese Case, p. 24.)
The next day, June 27th, the Dutch delegate accepted the Portu- guese proposition, but, to avoid all misunderstanding, claimed for his Government "absolute certitude that the eastern limit of Okussi represented by the line A-C shall be designated as much as possible on the land itself."
In fact, there was a misunderstanding, for the first Portuguese delegate replied that the proposition of the day before "did not say that the frontier east of Okussi shall be formed by the line A-C, but on the contrary by the line proposed by the mixed commission of 1899 and indicated by the letters A-B."
The first Dutch delegate immediately replied that "if the line A-C is not accepted as the frontier east of Oikoussi (and if the Dutch demands for the frontier in the center of Timor are not accepted) . . . the Dutch delegates withdraw their consent to the Portu- guese proposition. . . . They would never be able to submit to their Government a plan which did not satisfy these conditions." The Dutch delegate ended by declaring that if a friendly agreement on this basis could not be reached, the Netherlands would have re- course to the arbitration foreseen by the convention of 1893 on the "enclave question," thus giving it to be understood that in the case of the line A-C being refused for the eastern frontier of Ambeno, the Netherlands would raise the much greater question of whether the whole of Ambeno was not an enclave that logically might re- vert to the Netherlands, since several times in the treaty of 1859 Ambeno had been designated as an enclave, and since one of the objects of the convention of 1893 was the "suppression of en- claves."
At the session of June 28th, the Portuguese delegates "having seriously examined the proposition of the Dutch delegates, put for-
THE ISLAND OF TIMOR CASE 369
ward in the session of June 27th, resolved to accept that proposi- tion, as well as the terms advanced by them (by the Dutch dele- gates) on that subject."
It is important to reproduce this discussion in detail, since it throws positive light on the real and mutual intention of the par- ties. Portugal declared herself satisfied with the conditions offered to her. In the middle of the Island of Timor she acquired the large enclave of Maukatar; if she did not there acquire the country of the Fialarangs, she kept Oikussi Ambeno in the west of the Island of Timor, and avoided discussing before arbitrators the deli- cate question of whether this enclave was or was not an enclave sus- ceptible of being granted in its entirety to the Netherlands ; Portu- gal preferred under these circumstances to renounce the debated eastern part of Oikussi Ambeno rather than to risk losing more or even all in that locality. In a word, throughout the negotiations she found compensations deemed sufficient by her for abandoning the line B-D and the intermediate line A-B that she claimed. She finally accepted the line A-C claimed by the Netherlands sine qua non.
Thus it is certain that this line A-C should be considered, in the intention of the parties, as a concession made by Portugal to the Netherlands, and that fact was proclaimed by the Portuguese dele- gates themselves, in the case which they presented at the session of June 26, 1902, during the conferences at The Hague, in these terms : "These territories represent a considerable reduction of the frontiers of the kingdom of Ocussi-Ambenou."
2. What is line A-C?
(a) First, where is point C? At the embouchure of the Noel Meto river into the Sea of Timor in the northern part of the island. No dispute exists on this subject, and the convention of 1904, Ar- ticle 3, No. 10, expressly stipulates that the frontier follows the thalweg of the Noel Meto from its source to its mouth. Between 1899 and 1902-1904 Portugal on the contrary claimed all that ter- ritory east of the Noel Meto as far as the river Noel Boll Bass; the mouth of the Noel Boll Bass was point B, the northern end of the A-B line claimed by Portugal (Portuguese proposition, session of February 21, 1899, second Dutch Case annex II, procts-verbaux
370 THE HAGUE COURT REPORTS
of The Hague conferences, 1902, page 10, and maps here annexed I and II).
If the location of point C is not disputed, it is nevertheless useful to state that the adoption in 1904 of the course of the Noel Meto rather than the course of the Noel Boll Bass, as a boundary line, proves the general intention of restoring the frontier toward the west.
(&) The location of the source of the Noel Meto was determined and a mete was set there by common agreement (proces-verbal of June 14, 1909, first Portuguese Case, page 26). All that part of the survey is thus definitely settled. (See map annex VI.)
(c) Now, where is the other end of the line, point A, acknowl- edged in the conference of 1902? The Netherlands maintain this point A is found where the reconnaissance of 1899 ended and where the commissioners had to stop their work because of hostilities be- tween the native tribes, that is to say at the point where the commis- sioners, having followed the Nono Balena, the Nono Nive and the Noel Bilomi, reached the confluence of this last river with another coming from the north and to which by common agreement the name of Oe Sunan was allotted.
All the boundary line in the western and lower part of the basin of the Bilomi was sanctioned and definitely admitted as frontier by the treaty of 1904. Article 3, No. 9. At the time of the subse- quent reconnaissance of June 17, 1909, it is stated in the procts- verbai that this point is not doubtful : "It is decided unanimously that the survey shall be followed from this point, that is to say, the point where the commission of 1899 stopped its work" (First Dutch Case, annex III, page 4; first Portuguese Case, page 27.) The disagreement comes only as to what is to be done from this point on, whether toward the north (Dutch claim) or in the easterly direction (Portuguese claim). Now this point, at which the work was suspended in 1899, starting from which the disagreement had arisen in 1899 and 1902, was marked on the official map signed in a contradictory manner by the boundary commissioners of the two nations February 16, 1899. It is this very point which was con- sidered when in the conference at The Hague of 1902, the dele-
THE ISLAND OF TIMOR CASE
371
gates of the two States solved the dispute by pronouncing in favor of a frontier extending toward the north and designated by the name of line A-C. In drawing up this map of February 16, 1899 (annex IV appended here) under the map annexed to the conven- tion of 1904 (annex III, appended here), they state that there is absolute agreement between them as to the location of the point in question.
The Portuguese Government, moreover, does not contest very sharply the location of point A, for in its first case it expresses itself as follows, page 10 : "There is no pretension to deny that the line starts from point A. What is debated is the subordinate inflexions . . . ," and farther on page 15: "There is no denial that the frontier concerned starts from the point where the surveyors were prevented from going farther; what is denied is that they had the intention of running it north from there"
From the above it results that the arbitrator is certain that three points of the line A-C have been duly established incontestably, and not even contested: point C in the north, the source of the Noel Meto in the middle, and point A in the south, at the spot where the boundary work was suspended in 1899. These three points cer- tainly correspond to the intention of the parties when they negoti- ated the project of the convention of 1902 and transformed it into the convention of 1904. To admit another solution as to the loca- tion of point A, moreover, would again place in question the fron- tier of the lower course of the Noel Bilomi agreed upon by No. 9 of Article 3 of the treaty of 1904 ; now, No. 9 is not contested and is not in litigation.
3. There now remains to examine the part of line A-C comprised between point A in the south and the source of the Noel Meto in the middle of line A-C.
Here again, and always, we must look for the real and harmoni- ous intention of the parties when they bound themselves:
In 1902 two propositions were in sight : That of Portugal had been formulated as follows in the proems-verbal of the session of the boundary commissioners held at Koepang, February 21, 1899 (annex II in the second Dutch Case) : "From this last point (point
372 THE HAGUE COURT REPORTS
A), the length of the Noel Bilomi as far as Nunkalai, from there crossing Tasona, Kin Napua, Humusu, as far as the source of the Noel Boll Bass; then the length of that river as far as its mouth." At the conferences of The Hague of 1902, this survey (D-B) was abandoned at the session of June 26th by the Portuguese delegation and replaced by the demand for an intermediate and diagonal sur- vey A-B, which would have the course of the Noel Boll Bass as a frontier in the northwest instead of the Noel Meto (see Map II here appended). On the 28th of June the Portuguese delegation abandoned this retreating line (ligne de retraite) A-B, moved back westerly from the Noel Boll Bass to the Noel Meto, and accepted line A-C claimed by the Netherlands. This line A-C was immedi- ately traced on a map which officially had been annexed to the treaty of 1904 (see map annexed III).
On this map the frontier, starting from point A where the undis- puted frontier of the lower course of the Noel Bilomi ends, as- cends a northerly direction the course of a small affluent called Oe Sunan by common agreement, then continues northerly as far as the location, then not known, of the source of the Noel Meto. This survey on the map was defined and commented on as follows in the treaty, Article 3, No. 10: "Starting from this point (A) the boun- dary follows the thalweg of the Oe Sunan, crosses Nipani and Kelali (Keli) as much as possible, strikes the source of the Noel Meto and follows the thalweg of that river as far as its mouth." Now this text, made definitive in the treaty of 1904, reproduces word for word the text proposed by the Dutch commissioners at that same session at Koepang, February 21, 1899, in opposition to what the Portuguese claimed at that time. Simply calling to attention these two maps and the fact that in 1902-1904, the Portuguese pro- posal was ignored totally and the Dutch proposal inserted word for word, suffices to establish by evidence the intention of the contract- ing parties: when they negotiated and signed the agreement of 1904 they adopted the Dutch survey and threw aside the survey desired by Portugal on that part of the frontier of the two States in the Island of Timor. Thus, in the mind of the arbitrator, the two par- ties had a real and harmonious wish to adopt the most western sur-
THE ISLAND OF TIMOR CASE 373
vey, not only on the northern slope of the island between the Noel Boll Bass and the Noel Meto, but also in the center of the island, between the source of the Noel Bilomi and the source of the Noel Meto.
It is now fitting to enter into the details of examining the most western survey :
4. Portugal observes to-day that the water-course marked Oe Sunan on the official maps of 1899 and 1904, and in Article 3, No. 9 of the treaty of 1904, does not exist ; that really this water-course bears the name of Kabun among the members of the Tumbabas tribe or of Leos among the members of the tribe of Ambenos, and that the true Oe Sunan is to be found six or seven kilometers farther to the east. It is true, the Portuguese Government adds, that this other Oe Sunan is not an affluent of the Bilomi river, that it takes its source at a certain distance from that river, on the north slope of Mount Kinapua, but this other Oe Sunan and Mount Kinapua are claimed by the Ambenos (Portuguese) as from ancient date form- ing the frontier between them on the west and the Dutch Amakonos on the east : So it is this other Oe Sunan, in the opinion of the Portu- guese Government, that the two Governments had in mind, when in Article 3, No. 10 of the treaty of 1904 they stipulated that the frontier would follow the course of the Oe Sunan.
To appreciate the scope of this allegation there is reason to recol- lect that, on the map prepared by the boundary commissioners of the two nations at Koepang, February 16, 1899 (map annex IV) the frontier then demanded by Portugal is indicated by a dotted line following the presumed course of the Noel Bilomi upstream in an easterly direction starting from the point (A) where the said commissioners had to stop their work at that time, that is to say, starting from the confluence of the Noel Bilomi with what then by common agreement was called the Oe Sunan; in the map of 1899 care was taken to have the dotted line followed with the words "Noel Bilomi" so as to indicate well the Portuguese commissioners desire to follow the course of the river while ascending it.
On the other hand, at the time of the treaty of 1904, all of the dotted line east of the point where a halt was made in 1899 was
374 THE HAGUE COURT REPORTS
suppressed, to show clearly that there was no longer reason to as- cend in an easterly direction the then unexplored course of the Noel Bilomi, and that on the contrary the frontier should proceed toward the north (see transparent map annex III). This implies, in the mind of the arbitrator, the harmonious intention to grant, from point A upstream, both banks of the Noel Bilomi to the Netherlands.
Another fact which to the arbitrator seems to imply the harmoni- ous intention of the parties at the time of the signature of the con- vention of 1904, is that, in the description of the frontier proposed by the Portuguese commissioners in 1899, they suggested the follow- ing survey west to east: "From this last point (the confluence of the Noel Bilomi with the affluent at that time named Oe Sunan) the length of the Noel Bilomi as far as Nunkelai, from there crossing Tasona, Kinapua . . .;" according to this Portuguese descrip- tion Nunkalai is to be found east of the river Oe-Sunan and west of Kinapua. Now, the other Oe-Sunan river, now claimed by Por- tugal as a frontier, is situate several kilometers east, and not west, of Nunkalai, from which results the impossibility that this river had been considered by the Portuguese delegates in their proposals of that time.
What further confirms this impression of the arbitrator is the fact that the new Oe Sunan, this one which, six kilometers to the east, has its source on the northern watershed of Mount Kinapua, is not an affluent of the Noel Bilomi.
Finally, this other Oe Sunan does not proceed "toward Nipani and Kelali (Keli)" as the treaty of 1904 prescribes it, but is very quickly confused with other rivers flowing east and finally ends in regions incontestably Dutch.
Together all of these concordant circumstances lead the arbitrator to the conviction that there is no need to pause on the mistake of name made by the boundary commissioners in 1899 and by the negotiators of the international acts of 1902 and 1904 when they gave the name of Oe Sunan to Kabun or Leos, and that, on the contrary, there is reason to admit that it is this very Kabun or Leos that the parties intended to consider as properly to serve as a fron- tier from point A north. This mutual error of the commissioners
THE ISLAND OF TIMOR CASE 375
of both nations is explained, moreover, when one states that most of the water-courses of that region bear several names or bear the name of the country which they cross and that a region neighboring to Kabun or Leos has the name Sunan the sound of which resembles that of Oe Sunan.
To admit any other solution, to accept a survey mounting the course of the Noel Bilomi as far as Mount Kinapua, then passing into the basin of another Oe Sunan which is not an affluent of the Bilomi, and which does not proceed toward Nipani and Kelali, would be contrary to the whole spirit of the negotiation of 1902- 1904, and irreconcilable with the map annexed to the convention of 1904.
Portugal could not, at this late time, claim equitably between the Noel Bilomi and the source of the Noel Meto and, in connection with a setting of metes, almost exactly the territory which it re- nounced expressly in 1902-1904 for compensations deemed suffi- cient by her or because she wished to avoid an appeal on the part of the Netherlands to arbitration or to more extensive claims in the Okussi region (see map annexes V and VI).
In other words, there develops from what has gone before the conviction that the will of the contracting Parties ought to be inter- preted in the sense that, starting from point A situate on the Bilomi river, the frontier follows in a northerly direction the thalweg of the river Kabun or Leos as far as the source of this last water- course wrongly, called Oe Sunan in 1899, 1902 and 1904.
The reasoning elucidated above under No. 4 would be superfluous if, as the Government of the Netherlands affirms (second Case, No. VIII, page 6), the last reconnaissances made on the premises estab- lished that this new Oe Sunan does not exist and that the water- course to which this name has been given by the Portuguese is in reality called Noel Polan or Poeamesse.
5. We have now but to seek the intention of the parties for that region included between the source of the Kabun or Leos river (wrongly called Oe Sunan in 1899-1904) and the source of the Noel Meto.
The convention of 1904 is expressed as follows : "The thalweg
376 THE HAGUE COURT REPORTS
of the Oe Sunan, (recognized above under No. 4 as rightfully called Kabun or Leos) crosses Nepani and Kelali (Keli) as much as possible, (and) strikes the source of the Noel Meto. . . ."
The Dutch boundary commissioners and their Government pro- pose to connect the sources of the Kabun and Noel Meto rivers by following almost exactly the dividing line of the streams, that is to say, a series of peaks of which the principal ones, from north to south, have the names of Netton, Adjausene, Niseu, or Nisene, Wanat or Vanate, Fatu Nipani or Fatoe Nipani, Fatu Kabi (Fatoe Kabi) and Kelali (Keli).
This proposal is contested by the Portuguese Government because it would be contrary to the intention of the parties whose aim was, at the time of the conclusion of the treaties between the two Gov- ernments, not to divide the native States; now, that line detaches the whole eastern part from Portuguese Ambeno. In its first Case, and especially in the annexes to the second, the Portuguese Gov- ernment invokes the depositions of numerous native chieftains to prove, in substance, that the whole space which would be attributed to the Netherlands is a part of Ambeno and belongs to the Ambenos. Besides this they invoke a private map edited at Batavia on which the Ambenos are indicated as occupying the territory claimed by the Netherlands. The Portuguese Government is of the opinion that Ambenu-Oikussi was granted incontestably to Portugal by the treaty of 1859, and that the tribe of Ambenos could not be parti- tioned between two sovereignties.
Once again must the arbitrator seek to reconstitute the will of the parties. Now according to the test of the treaty of 1859 Por- tugal obtained only the "part" of the State of Ambeno that "has raised the Portuguese flag ;" that certain parts of Ambeno were con- sidered, since 1859, as remaining under the sovereignty of the Netherlands, would be nothing anomalous. Further than this, the private map edited at Batavia could not be weighed in value with the two official maps signed by the commissioners or delegates of the two States in 1899 and 1904, and on these two official maps (an- nexes III and IV) the name Ambeno does not figure within the dis- puted territory; both put that name west and outside the disputed territory. Moreover, it results from the document at hand that since
THE ISLAND OF TIMOR CASE 377
1899 the Dutch commissioners produced declarations of the native Tumbaba and Amakano chieftains assuring that this territory be- longed to them and was not a part of Ambeno (annex III in the second Dutch Case, declaration made at the session held at Koe- pang, February 21, 1899). Thus we find ourselves in the presence of contradictory assertions of natives. The latter in 1899 had been fighting for more than twenty years (first Portuguese Case, page 22) at the time of the arrival of the boundary commissioners in that region, and the Portuguese Government (in its first Case, page 9) acknowledged it as "certain that the peoples east of Oikussi Ambeno have disputed the contiguous territories for a long time and that these peoples are so intermingled that it is difficult to dis- tinguish what really does belong to them." See also in the second Portuguese Case, page 10, the deposition of the Ambeno chief, Bene Necat: "The eastern part of Oikussi and Ambeno was in- habited by the Tumbaba people who were driven out of there three generations ago ... by the Ambenos. . . . Since then that region has been desert, although it has been overrun by both Tumbabas and Ambenos."
The intention of the parties at the time of the negotiation of 1902 is found documented in the proccs-verbal of the session of June 26th (proces-verbaux, page 7) during the course of which the first Por- tuguese delegate himself advised "not to allow one's self to be guided too much in this business by humanitarian motives toward the peo- ples of the Island of Timor; for petty causes these tribes quit their native soil to set up elsewhere, and several times they have left Dutch territory to establish themselves in Portuguese territory, and vice versa." The next day, proces-verbaux, page 11, the first Dutch delegate observed that his Government was making "a great con- cession" in not claiming the whole of Ambeno, "considering that according to his opinion the convention of 1893 implied the disap- pearance of the enclave of Oikussi"; he declared that if the two Governments were not able to come to an arrangement on the basis of the line A-C proposed by the Netherlands, the latter would con- sider itself bound to have recourse to arbitration to decide whether Ambeno was an enclave that ought to be granted to it entirely, and then, June 28th, the Portuguese delegation accepted line A-C
378 THE HAGUE COURT REPORTS
without restriction or reservation as had been claimed by the Dutch delegation.
From all these facts there results the conviction of the arbitrator that in 1902-1904 an agreement was reached without taking into account the chance of detaching such or such a parcel claimed by the Ambenos, the Tumbabas, or the Amakonos, and expressly stat- ing that there would be no preoccupation with the claims, contra- dictory as they were, of the natives. In other terms, from the proces-verbaux of 1902 there results the conviction of the arbitra- tor that Portugal accepted line A-C as it was claimed by the Nether- lands, precisely because Portugal preferred to abandon claims of a secondary order to the east, in order to save the big piece, that is to say, in order to save what the treaty of 1859 calls the "enclave" of Ambenu-Okussi. The Government of the Netherlands, in the mind of the arbitrator, also correctly maintains in its second Case, page 2, that nothing in the treaty of 1859 prevented the division of the kingdom of Ambeno, and adds: "Even if the treaty of 1859 did not sanction such a division, the Portuguese Government legitimately could not oppose such a division now. Such objections would come too late, and ought to have been raised before the con- clusion of the treaty of 1904."
The arbitrator observes, moreover, on the two official maps of 1899 and 1904 (annexes III and IV) that Nipani is indicated as being very close and slightly to the east of line A-C, a short dis- tance from the source of the Oe Sunan (recognized at present as rightfully called Kabun or Leos) ; if the survey now claimed by Portugal were adopted, that survey would pass very far to the east and north of Nipani, and consequently would "cross" that territory still less than the survey proposed by the Netherlands. It is true that the Portuguese Government locates Nipani (see the map an- nexed under No. VI of the first Dutch Case and the word Nipani written in blue on the map here appended, annex IV) northwest of the disputed territory, but this unilateral Portuguese map could not be weighed in opposition to the two official maps of 1899 and 1904 (annexes III and IV), signed by the delegates of the two States ; besides, even on this exclusively Portuguese map, the frontier desired by Portugal seems surveyed to the north of Nipani and does not appear to "cross" that territory.
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6. The Government of the Portuguese Republic finally objects to this survey of a line almost due north and south between the source of the Kabun or Leos river and the source of the Noel Meto, since it is a land frontier, necessitating the placing of metes, while the eastern line suggested by Portugal is formed essentially by a succession of streams, which is preferable in order to avoid con- flicts among the natives. In the mind of the arbitrator, this ob- jection rests on no information resulting from the negotiations of 1899 or 1904. On the southern frontier of Okussi-Ambeno, the frontier adopted in 1904 in not a few points is independent of water-courses and ought to have been or would have been marked on land by metes. The very survey suggested by Portugal would also admit of being in part on land and necessitating the setting of metes, notably at the southeast angle (in the environs of Mount Kinapua, between the course of the Bilomi river and the river called Oe Sunan by the Portuguese), and at the northeast angle (between the sources of the river by the Portuguese called Ni-Fullan and the source of the Noel Meto).
The survey suggested by the Dutch boundary commissioners would appear to the arbitrator to constitute a frontier sufficiently natural easily to be bounded on land.
It consists of a continuous series of rather high summits, from north to south, bearing the names of Netton, Loamitoe, Adjausene, Niseu, Wanat, Fatoe-Nipani, Kelali or Keli, of which the altitude is indicated as from 500 to 1,000 meters. This range serves as a watershed, and the rivers east of that line run east. Thus it does not seem that it would be difficult technically to proceed to the boundary along that range of elevations, the general direction of which corresponds entirely to the theoretical line A-C adopted by common agreement in 1904.
VII. CONCLUSIONS
The preceding considerations of fact and law lead the arbitrator to the following conclusions:
1. The treaty of 1859 had granted to Portugal in the eastern part of the Island of Timor, the Oikussi-Ambenu enclave, and
380 THE HAGUE COURT REPORTS
at that time the Netherlands ceded to Portugal "that part of Am- benu which, for several years, has raised the Portuguese flag."
2. The purpose of the convention of 1893 was "to establish in the clearest and most exact manner the boundary" of the respective possessions in Timor and "to abolish the enclaves existing" there "at the present time."
3. The convention of 1904 rectified the frontier in the center of the island by granting Portugal the Dutch enclave of Maukatar and other disputed territory, and in the southwestern part of the island the Portuguese enclave of Noemuti to the Netherlands. On the other hand, during the negotiations of 1902 the Netherlands re- nounced raising the greater question of whether Oikussi Ambenu was, as the treaty of 1859 indicated it, an enclave rightfully re- verting to them. This agreement was reached under the condition, expressly accepted by Portugal, of adopting for the eastern frontier of the kingdom of Oikussi (Ambenu) line A-C claimed by the Netherlands during the negotiations of 1902. This line A-C was established by the treaty of 1904. (See map annexes I and II.)
4. Point C of this line is not disputed ; it is located on the north coast of the Island of Timor, at the embouchure of the Noel Meto into the sea, the course of which river was substituted in 1902—1904 for the course of the Noel Boll Bass river, located farther east and claimed by Portugal.
The course of the Noel Meto, of which the thalweg was to serve as the frontier as far as the source, was recognized, is not disputed, and a mete was set contradictorily at its source.
5. Point A at the southern end of the line agreed on in 1904, is the point where the boundary work was interrupted in 1899. This has not been disputed seriously by Portugal, who twice in the first Case uses the words: "It can not be denied that the line starts from point A, to which the procts-verbaux of the negotiations refer (p. 10). ... It is not disputed that the frontier concerned does not start from the point where the surveyors of 1899 were hindered from going any farther" (p. IS). To dispute the location of point A would again put in question the boundary of the lower course of the Noel Bilomi down-stream from that point ; now, that part of the frontier was settled definitely by No. 9 of Article 3 of
THE ISLAND OF TIMOR CASE 381
the treaty of 1904; moreover, point A was marked contradictorily on the official maps of 1899 and 1904 (see annexes III and IV).
6. Starting from point A the negotiators of 1902-1904 found themselves confronted with two proposals. One, the Portuguese proposal, consisted in ascending the Noel Bilomi river as a frontier in an easterly direction as far as Nunkalai, then directing the fron- tier to the north, through Humusu, finally striking the source of the Noel Boll Bass spilling into the sea east of the Noel Meto (line B-D). The other, the Dutch proposal, said A-C line, consisted in striking north from point A as far as the sources of the Noel Meto. The negotiators clearly and categorically repudiated the first Portu- guese survey to accept the second line A-C claimed by the Nether- lands; on the map annexed to the treaty of 1904 they granted to the Netherlands both banks of the Noel Meto upstream from point A, at which the boundary runners had stopped their work in 1899 (see maps ITI and IV).
7. The descriptions of this line A-C in the treaty of 1904, Article 3, No. 10, the maps contradictorily sketched in 1899, and on which the negotiators of 1902 deliberated, and finally the official map annexed to the treaty of 1904, mention an affluent at point A as properly forming a boundary in a northerly direction, to which all parties gave the name of Oe-Sunan from 1899 to 1909. To-day all parties agree this affluent really bears the name of Kabun or Leos. Another river subsequently discovered about six kilometers farther east bears the name of Oe Sunan according to the Portu- guese, and rises north of Kinapua, a mountain situate very near the north bank of the Bilomi. The existence of this Oe Sunan stream is contested by the Netherlands, in their second Case, following two recent reconnaissances: this alleged Oe-Sunan really would be called Poeamesse or Noel Polan.
In the mind of the arbitrator it is impossible that this other Oe Sunan river, if it exist, could have been the one the negotiators of 1899 and of 1902 — 1904 had in view, for
(a) It is not an affluent of the Noel Bilomi;
(&) The frontier proposed by Portugal at this period and mapped by common agreement in 1902-1904 was, starting from point A and proceeding easterly, to pass through Nunkalai then
382 THE HAGUE COURT REPORTS
through Kinapua; now Nunkalai is situated many kilometers west of Mount Kinapua and west of the source of this new river called Oe Sunan by the Portuguese;
(c) Both banks of the Noel Bilomi upstream to the east of point A having been granted to the Netherlands in 1904, the affluent that is to serve as a frontier in a northerly direction cannot be sought upstream and east of point A.
General principles for the interpretation of conventions demand that account be taken "of the real and mutual intention of the par- ties without pausing on inexact expressions or terms which possibly they have used erroneously." It is true that the parties erred in giving the name Oe Sunan to the affluent coming to point A from the north, but this is the only affluent (then erroneously called Oe Sunan) which, in the harmonious thinking of the parties, was neces- sarily the point at which the frontier ought to leave the Noel Bilomi to proceed north, — and not any other river to which the Portuguese give the name Oe Sunan and which would be located six kilo- meters farther east. In other words, the thalweg of the river to-day called Kabun or Leos is what ought to serve as the frontier from point A north.
8. Starting south from the source of this Kabun or Leos river (wrongly called Oe Sunan from 1899 to 1909) the frontier, ac- cording to the tenor of Article 3, No. 10, of the treaty of 1904, ought "to cross Nipani and Kelali (Keli) as much as possible" to reach the source of the Noel Meto to the north.
The boundary proposed by the Portuguese would go completely around that region designated under the name of Nipani on the official map of 1904 and according to that map situated near the source of the Kabun or Leos; the frontier would be several kilo- meters distant from Nipani in an easterly direction. Even if, as does a Portuguese map which has no character because being con- tradictorily acknowledged, one gives the name of Nipani to a re- gion located much more to the north, east of the sources of the Noel Meto, the frontier claimed by Portugal would not the more cross Nipani, but would go around it to the north.
The treaty of 1904 prescribes the crossing of Nipani "as much as possible." The survey suggested by the Netherlands runs along
THE ISLAND OF TIMOR CASE 383
the western part of Nipani and is nearer to it than the survey pro- posed by Portugal.
9. Portugal objects that the line due north and south between the sources of the Kabun and the Noel Meto rivers would parcel the territory of the Ambenos, granting part to the Netherlands and part to Portugal; this parcelling would be contrary to the treaty of 1859.
In the mind of the arbitrator, this objection is not established in the sense that already in 1859 a "part" of Ambeno was placed in- contestably under the sovereignty of the Netherlands. Besides, in the course of the negotiations from 1899 to 1904, contradictory declarations of the natives were produced, the Dutch Amakonos and Tumbabas claiming the disputed territory, and the Portuguese Ambenos claiming it from their side. Thus the alleged parcelling is not demonstrated. More, it was understood in the conferences of 1902, on the observation of the first Portuguese delegate himself, that there was no need to be extensively preoccupied with the pre- tensions of the tribes who frequently displaced each other and passed successively from the territory of one of the States to that of the other. The objection that the territories of even one tribe should not be parcelled could not be entertained by the arbitrator, for it would need to have been presented during the course of the negoti- ations from 1902-1904; at this time it is too late, because the treaty of 1904, Article 3, No. 10 (all that the arbitrator had to interpret), makes no mention of any intention of the parties never to divide native populations; on the contrary, that treaty ran the boundary line according to the conferences in the course of which it was un- derstood that considerations of that kind ought not to be prepon- derant.
10. The summit line proposed by the Government of the Nether- lands between the source of the river Kabun (Leos) to the south, and the source of the Noel Meto to the north, is sufficiently natural to be surveyed on land without great practical difficulties. It offers the advantage that the water-courses uniformly descend from that summit line toward the territories placed wholly under Dutch sov- ereignty. The survey suggested by the Portuguese Government,
384 THE HAGUE COURT REPORTS
on the contrary, would attribute the upper and the lower part of these several streams to different sovereignties.
11. In a general way, in fact, the demand of Portugal reproduces completely, for all the territory between the Noel Bilomi to the south and the Noel Meto to the north, the line that that State claimed in 1902 and abandoned at the end of the conference of 1902 and in the treaty of 1904. If the present Portuguese claim were estab- lished, it would not be explained why the Netherlands in 1902 made a sine qua non condition of the rejection of this Portuguese de- mand. Conventions between States, like those between individuals, ought to be interpreted "rather in the sense in which they can have some effect than in the sense in which they can produce none." The Dutch threat to break off the negotiations in 1902 would have meant nothing if the intention had been to grant Portugal precisely the territory claimed by the Netherlands as a condition for agreement.
12. Finally, if we take the point of view of equity, which it is important not to lose sight of in international relations, the summit line proposed by the Netherlands is not contrary to equity, in the sense that Portugal will receive more territory than it had reason to hope for according to the theoretical line A-C, to which she con- sented in 1904, before the land could be explored. Line A-C is wholly inside the territory that will revert to Portugal ; the Portu- guese Republic, in fact, will receive a better share than it ought to expect there (see map appended VII). If, on the contrary, the eastern survey suggested by the Portuguese Government were adopted, the Netherlands could rightfully allege that they were being deprived of almost all the territory which theoretically was granted to them in 1904 as compensation for abandoning the enclave of Maukatar in the center of the Island of Timor and in compensation for abandoning Dutch claims to the whole of the Ambeno enclave.
Consequently,
The arbitrator, considering the two treaties signed at Lisbon, April 20, 1859, and June 10, 1893, and the treaty signed at The Hague, October 1, 1904, between the Netherlands and Portugal for the boundary of their respective possessions in the Island of Timor;
Considering the compromis of arbitration signed at The Hague, April 3, 1913, and notably Article 2 thus couched : "The arbitrator,
THE ISLAND OF TIMOR CASE 385
acting upon the data furnished by the parties, shall decide, on the basis of the treaties and the general principles of international law, conformably to Article 3, No. 10 of the convention concluded at The Hague, October 1, 1904, concerning the boundary of the Dutch and Portuguese possessions in the Island of Timor, how the boun- dary-line should be fixed, starting from the Noel Bilomi, up to the source of the Noel Meto" ;
Considering the diplomatic notes designating the undersigned as arbitrator through the application of Article 1 of the compromis;
Considering the first and second Cases deposited in due time by each of the high contracting Parties, as well as the maps and docu- ments annexed to the said Cases ;
Considering the statements of fact and of law formulated above under Nos. I to VII;
Considering the convention signed at The Hague, October 18, 1907, for the pacific settlement of international disputes ; makes the following
AWARD
Article 3, No. 10, of the convention concluded at The Hague, October 1, 1904, concerning the boundary of Dutch and Portuguese possessions in the Island of Timor, ought to be interpreted conform- ably with the conclusions of the Royal Government of the Nether- lands for the boundary, starting from the Noel Bilomi, up to the source of the Noel Meto; consequently, it will proceed to the survey of that part of the frontier on the basis of the map scaled at 1/50,000 annexed under No. IV of the first Case deposited with the arbi- trator by the Dutch Government. A reproduction of this map signed by the arbitrator is appended as annex VII to the present award of which it shall be an integral part.
Expenses, fixed at 2,000 francs, have been deducted from the sum of 4,000 francs consigned to the hands of the arbitrator in exe- cution of Article 8 of the compromis of April 3, 1913; the remain- der, or 2,000 francs, shall be remitted in equal shares to the two parties, and receipted, at the moment of the notification of the award.
386 THE HAGUE COURT REPORTS
Done in three originals, of which one shall be deposited and re- ceipt therefor taken by the secretary general of the International Bureau of the Permanent Court of Arbitration at The Hague, with his Excellency the Minister of Foreign Affairs of the Netherlands as notification to the Royal Government of the Netherlands, and of which the second shall be deposited on the same day and in the same form with his Excellency the Envoy Extraordinary and Min- ister Plenipotentiary of the Portuguese Republic near Her Majesty the Queen of the Netherlands, as notification to the Government of the Portuguese Republic. The third original shall be deposited in the archives of the International Bureau of the Permanent Court of Arbitration.
Paris, June 25, 1914. LARDY
THE ISLAND OF TIMOR CASE 387
AGREEMENT FOR ARBITRATION
Compromis for the settling of differences in the interpretation of the treaty of October i, 1904, relative to the boundary in the Island of Timor. — Signed at The Hague, April j,
Her Majesty the Queen of the Netherlands and the President of the Republic of Portugal, considering that the execution of the con- vention concluded between the Netherlands and Portugal at The Hague, October 1, 1904,2 regarding the delimitation of the Dutch and Portuguese possessions in the Island of Timor, has led to a dispute concerning the surveying of that part of the boundary referred to under Article 3, No. 10, of the said convention;
Desiring to settle this dispute in a friendly manner;
In view of Article 14 of the said convention and of Article 38 of the convention for the pacific settlement of international disputes, con- cluded at The Hague, October 18, 1907;
Have designated as their plenipotentiaries, to wit :
Who, duly authorized to that end, have agreed upon the following articles :
ARTICLE 1
The Government of Her Majesty the Queen of the Netherlands and the Government of the Portuguese Republic agree to submit the afore- mentioned dispute to a sole arbitrator to be chosen from the member- ship of the Permanent Court of Arbitration.
If the two Governments should not agree upon the selection of the said arbitrator, they shall request the President of the Swiss Confed- eration to designate him.
ARTICLE 2
The arbitrator, acting upon the data furnished by the parties, shall decide on the basis of the treaties and the general principles of inter- national law, conformably to Article 3, No. 10, of the convention con- cluded at The Hague, October 1, 1904, concerning the boundary of the Dutch and Portuguese possessions in the Island of Timor, how
translation. For the original French text, see Appendix, p. 596. *Post, p. 396.
388 THE HAGUE COURT REPORTS
the boundary-line should be fixed starting from the Noel Bilomi, up to the source of the Noel Meto.
ARTICLE 3
Through the intermediary of the International Bureau of the Per- manent Court of Arbitration, each of the parties shall transmit to the arbitrator, within three months after the exchange of the ratifications of the present convention, a memoir containing an exposition of its rights and the documents in support thereof, and shall immediately forward a certified copy thereof to the other party.
Upon the expiration of the period herein stated, each of the parties shall be entitled to another period of three months to transmit, if it deems it expedient, to the arbitrator, through the intermediary herein- before indicated, a second memoir of which it transmit a certified copy to the other party.
The arbitrator is authorized to grant to each of the parties so desir- ing, a prorogation of two months regarding the periods mentioned in this article. He shall give notification of each prorogation to the adverse party.1
ARTICLE 4
After the exchange of these memoirs, no communication, either writ- ten or verbal shall be made to the arbitrator, unless the latter requests of one or both of the parties additional information in writing.
The party furnishing such information shall immediately forward a certified copy thereof to the other party, and the latter may, in its discretion, within a period of two months after the receipt of the said copy, communicate in writing to the arbitrator, such observations as may be necessary. A certified copy of these observations shall also be communicated immediately to the adverse party.
ARTICLE 5
The arbitrator shall render his decision in a place to be designated by him.
ARTICLE 6
The arbitrator shall use the French language both in rendering his decision and in the communications that he may have occasion to
*A prorogation of two months was granted to the parties by the arbitrator for the transmittal of their second memoirs.
THE ISLAND OF TIMOR CASE 389
address to the parties in the course of the procedure. Memoirs and other communications coming from the parties themselves shall be written in the same language.
ARTICLE 7
The arbitrator shall decide all questions that might arise with regard to procedure during the course of the litigation.
ARTICLE 8
Immediately after the ratifications of the present convention, each of the parties shall deposit with the arbitrator, in advance, the sum of 2,000 francs to cover the expenses of the procedure.
ARTICLE 9
The decision shall be communicated in writing by the arbitrator to the parties.
It shall state the reasons upon which it is based.
In his decision, the arbitrator shall state the amount of the expenses of the procedure. Each party shall bear its own personal expenses and one-half each the said expenses of procedure.
ARTICLE 10
The parties obligate themselves to accept as final the decision ren- dered by the arbitrator in accordance with the provisions of the pres- ent convention and to abide by it without any reservation whatever.
The dispute concerning the execution of the decision shall be re- ferred to the arbitrator.
ARTICLE 11
The present convention shall be ratified and shall become binding immediately after the exchange of ratifications, which shall take place at The Hague as soon as possible.
In faith of which, the respective plenipotentiaries have signed the present convention and have affixed their seals thereto. Done in duplicate at The Hague, April 3, 1913.
(L. S.) (Signed) R. DE MAREES VAN SWINDEREN
(L. S.) (Signed) ANTONIO MARIA BARTHOLOMEU FERREIRA
390 THE HAGUE COURT REPORTS
ADDITIONAL DOCUMENTS
Agreement between the Netherlands and Portugal relative to the boundary of their possessions in the archipelago of Timor and Solor. — Signed at Lisbon, April 20, /tfjp.1
His Majesty the King of the Netherlands, His Majesty the King of Portugal and the Algarves, believing it to be necessary finally to settle the existing incertitudes regarding the boundaries of Dutch and Por- tuguese possessions in the archipelago of Timor and Solor, and desir- ing to prevent forever any misunderstanding that might arise because of ill-defined boundaries and too numerous enclaves, have with that end in view, conferred their full power, to wit:
Who, after having communicated to each other the said full powers, found in good and due form, have agreed to conclude a treaty of de- markation and exchange, containing the following articles:
ARTICLE 1
The boundaries between the Dutch and Portuguese possessions in the Island of Timor shall be on the north, the frontiers separating Cova from Juanilo; and on the south, those that separate Sua from Lakecune.
Between these two points, the boundaries of the two possessions shall be the same as those between the contiguous Dutch and Portu- guese States.
These States are as follows:
Contiguous States under the Contiguous States under the
Sovereignty of the Netherlands Sovereignty of Portugal
Juanilo Cova
Silawang Balibo
Fialarang (Fialara) Lamakitu
Lamaksanulu Tafakaij ou Takaij
Lamakanee Tatumea
Naitimu (Nartimu) Lanken
Manden Dacolo
Dirma Tamiru Eulalang (Eulaleng)
Lakecune Suai
ARTICLE 2
The Netherlands recognizes the sovereignty of Portugal over all the States to the east of the boundaries thus defined, excepting the
translation. For the orginal French text, see Appendix, p. 599.
THE ISLAND OF TIMOR CASE 391
Dutch State of Maucatar or Calunineme (Coluninene), which extends into the Portuguese States of Lamakitu, Tanterine, Follafaix (Folle- fait) and Suai.
Portugal recognizes the sovereignty of the Netherlands over all the States west of these boundaries, excepting the extensional territory of Oikoussi, which remains Portuguese.
ARTICLE 3
The enclave of Oikoussi includes the State of Ambenu wherever the Portuguese flag flies, the State of Oikoussi itself and the State of Noimuti.
The boundaries of this enclave are the frontiers between Ambenu and Amfoang to the west, of Insana and Reboki (Beboki) including Cicale on the east, and Sonnebait, including Amakono and Tunebaba (Timebaba) on the south.
ARTICLE 4
On the Island of Timor, Portugal recognizes therefore the sover- eignty of the Netherlands over the States of Amarassi, Bibico (Traijnico, Waijniko), Buboque (Reboki), Derima (Dirma), Fialara (Fialarang), Lamakanee, Nira (Lidak), Juanilo, Mena and Fulgarite or Folgarita (dependencies of the State of Harnenno).
ARTICLE 5
The Netherlands yields to Portugal the kingdom of Moubara (Mau- bara) and that portion of Ajnbenu (Sutrana) which, for several years past, has flown the Portuguese flag.
Immediately after the exchange of ratifications of this treaty by Their Majesties the King of the Netherlands and the King of Por- tugal shall have taken place, the Government of the Netherlands shall direct the superior authorities of the Dutch Indies to convey the kingdom of Moubara (Maubara) to the superior authorities of Timor Dilly.
ARTICLE 6
The Netherlands disclaims any pretension whatever over the Island of Kambing (Pulo Kambing), on the north of Dilly, and recognizes Portuguese sovereignty over this island.
392 THE HAGUE COURT REPORTS
ARTICLE 7
Portugal yields to the Netherlands the following possessions:
On the island of Flores, the States of Larantuca, Sicca, Paga, with their dependencies;
On the island of Adenara, the State of Woure;
On the island of Solor, the State of Pamangkaju.
Portugal disclaims all pretensions it might possibly have entertained with regard to other States or localities situate on the above-named islands, or upon those of Lomblen, Pantar and Ombaij, whether these States fly the Dutch or Portuguese flag.
ARTICLE 8
By reason of the provisions of the preceding article, the Nether- lands obtains full and undivided possession of all islands situate on the north of Timor, to wit : those of Flores, Adenara, Solor, Lomblen, Pantar (Quantar) and Ombaij, together with the near islands belong- ing to the archipelago of Solor.
ARTICLE 9
And as compensation for what Portugal might lose by the exchange of the above-mentioned respective possessions, the Government of the Netherlands:
1. Shall give to the Portuguese Government a complete quit-claim to the sum of 80,000 florins, borrowed in 1851 from the Government of the Dutch Indies by the Government of the Portuguese possessions in the archipelago of Timor;
2. Shall deliver in addition to the Portuguese Government a sum of 120,000 Netherland florins.
This amount shall be payable one month after the exchange of rati- fications of the present treaty.
ARTICLE 10
The freedom of worship is mutually guaranteed to the inhabitants of the territories exchanged in virtue of the present treaty.
ARTICLE 11
The present treaty, which in conformity with the rules prescribed by the fundamental laws in force in the kingdoms of the Netherlands
THE ISLAND OF TIMOR CASE 393
and Portugal, shall be submitted to the legislative powers for ratifica- tion, and the ratifications shall be exchanged at Lisbon, within a period of eight months from the date of its signature, or sooner if possible. In faith of which the respective plenipotentiaries have signed the present treaty and affixed thereto the seal of their arms. Done at Lisbon, April 20, 1859.
(L. S.) (Signed) A. M. DE FONTES PEREIRA DE MELLO (L. S.) (Signed) M. HELDEWIER
Convention between the Netherlands and Portugal relative to com- merce, navigation, boundaries, and mutual rights of preemption as regards their respective possessions in the Timor and Solor archi- pelago.— Signed at Lisbon, June 10, 1893. 1
Her Majesty the Queen of the Netherlands and in her name Her Majesty the Queen Regent of the Kingdom and
His Majesty the King of Portugal and the Algarves, realizing the community of interests existing between their possessions in the archi- pelago of Timor and Solor and desiring by mutual good-will to deter- mine the conditions most favorable for the advancement of civiliza- tion and commerce in their possessions, have resolved to conclude a special convention and to that end have designated their plenipoten- tiaries, to wit:
Who, after having communicated to each other their respective full powers, found in good and due form, have agreed upon the following articles :
ARTICLE 1
In order to facilitate the exercise of their rights of sovereignty, the high contracting parties, believe it to be necessary to establish in the clearest and most exact manner the boundary of their possessions on the island of Timor and to abolish the enclaves existing at the present time.
ARTICLE 2
The high contracting Parties shall appoint to that end a commission of experts whose duty it shall be to formulate a proposition which may serve as a basis for the conclusion of a subsequent convention determining the new boundary lines in the said island.
translation. For the original French text, see Appendix, p. 601.
394 THE HAGUE COURT REPORTS
This convention shall be submitted to the approbation of the legisla- tures of the two countries.
ARTICLE 3
Within the Island of Timor there shall be granted to fishing vessels belonging to the subjects of each of the high contracting Parties, as well as to their crews, the same protection on the part of the respective authorities as that enjoyed by their respective subjects.
The commerce, industry and navigation of the two countries shall enjoy there the treatment of the most favored foreign nation, excepting the special treatment respectively accorded by the high contracting Parties to the indigenous States.
ARTICLE 4
The high contracting Parties decide that the importation and ex- portation of firearms or parts thereof, or cartridges, capsules or other ammunition intended for them, are prohibited within their possessions in the archipelago of Timor and Solor.
Independent of measures directly adopted by the Governments for the arming of their public force and the organization of their de- fense, individual exceptions may be made with regard to their Euro- pean subjects, sufficient guarantee being given that the particular weapons and ammunition that might be furnished them shall not pass into the hands of or be sold to third parties, and in case of foreign travelers, the latter shall be provided with a declaration of their Government stating that the weapon and the ammunition are exclu- sively intended for their personal defense.
ARTICLE 5
The superior authorities of the Dutch party and of the Portuguese party in the Island of Timor shall nevertheless be authorized to deter- mine annually by mutual agreement the number and kind of unper- fected firearms and the amount of ammunition that may be received in the course of the same year, as well as the conditions under which such importations may be granted.
Such importation, may, however, take place only through the inter- mediary of certain persons or agents residing in the island itself, who in respect to this matter shall have obtained special authorization from the respective superior administration.
THE ISLAND OF TIMOR CASE 395
In case such authorization is abused, it shall be withdrawn immedi- ately and may not be renewed.
ARTICLE 6
As a proof of its desire of establishing good neighborly relations, the Dutch Government hereby declares to relinquish its claim to in- demnification to which it believes itself entitled as a result of certain treatment to which Dutch-Indian fishermen were subjected from 1889-1892 on the part of the Timor-Portuguese authorities.
ARTICLE 7
In case difficulties should arise with regard to their intercolonial relations in the archipelago of Timor and Solor or with regard to the interpretation of the present convention, the high contracting Parties agree to submit such difficulties to the decision of an arbitral com- mission.
This commission shall be composed of an equal number of arbitra- tors chosen by the high contracting Parties and of an arbitrator desig- nated by these arbitrators.
ARTICLE 8
The present convention shall be ratified and the ratifications ex- changed at Lisbon.
In faith of which, the plenipotentiaries have signed the same and affixed their seals thereto.
Done in duplicate at Lisbon, June 10, 1893.
(L. S.) (Signed) CAREL VAN HEECKEREN
(L. S.) (Signed) ERNESTO RODOLPHO HINTZE RIBEIRO
Declaration Signed at Lisbon, July i, 1893, regarding Cession of
Territory*
The undersigned plenipotentiaries of the Governments of the sig- natories of the convention of June 10, 1893,2 have agreed upon the following declaration:
In order to insure the result of their common action tending espe-
iTranslation. For the original French text, see Appendix, p. 603. *Ant€, p. 393.
396 THE HAGUE COURT REPORTS
cially to encourage the commerce and industry of their nationals by guarantees of security and stability, the high contracting Parties de- clare that in case of cession in part or in whole of their territories or of their rights of sovereignty in the archipelago of Timor and Solor, they mutually recognize the right of preference regarding terms sim- ilar or equivalent to those which shall have been offered. Cases of disagreement as to these terms are likewise subject to the application of Article 7 of the aforesaid convention.
The present declaration which shall be ratified at the same time as the convention concluded at Lisbon, June 10, 1893, shall be regarded as an integral part of the said convention, and shall have the same force and value.
In faith of which the respective plenipotentiaries have signed the present declaration and affixed their seals thereto.
Done in duplicate at Lisbon, July 1, 1893.
(L. S.) (Signed) CAREL VAN HEECKEREN
(L. S.) (Signed) ERNESTO RODOLPHO RIBEIRO
Convention between the Governments of the Netherlands and Por- tugal for the settlement of the boundary between their possessions in the Island of Timor. — Signed at The Hague, October i, 1904*
Her Majesty the Queen of the Netherlands and His Majesty the King of Portugal and the Algarves, etc., etc.
Recognizing the community of interests existing between their pos- sessions in the archipelago of Timor and of Solor, and desiring to de- fine a clear and exact boundary of these possessions in the Island of Timor, after having informed themselves of the result of the labors of the mixed commission appointed for the regularization of the Dutch and Portuguese frontiers in the Island of Timor, established by the respective Governments in virtue of Article 2 of the convention concluded between the high contracting Parties at Lisbon, June 10, 1893,2 have resolved to conclude a convention to that effect and have designated as their plenipotentiaries:
Who, after having communicated to each other their full powers, found in good and due form, have agreed upon the following:
translation. For the original French text, see Appendix, p. 604. *Ante, p. 393.
THE ISLAND OF TIMOR CASE 397
ARTICLE 1 The Netherlands conveys Maucatar to Portugal.
ARTICLE 2
Portugal conveys Noimuti, Tahakay and Tamiru Ailala to the
Netherlands.
ARTICLE 3
The boundary between Ambenu-Oikussi, belonging to Portugal, and the Dutch possessions in the Island of Timor is formed by a line :
1. Starting from the mouth of the (river) Noel Besi whence the highest point on the (island) Pulu-Batek is seen under an astronom- ical azimuth of 3(X, 47" northwest, following the thalweg of the Noel Besi, that of the Noel Niema and that of the Bidjael Sunan to its source ;
2. Ascending from this point to the summit of the Bidjael Sunan, and descending down the thalweg of the Noel Miu Mavo to the point situate on the southwest of the village Oben;
3. From thence passing on the west of this village along the sum- mits Banat and Kita to the summit Nivo Nun Po; from thence fol- lowing the thalweg of the rivers Nono Boni and Noel Pasab to its affluent the Nono Susu, and ascending the Nono Susu to its source;
4. Passing the Klus (Crus) to the point where the frontier between Abani and Nai Bobbo crosses the river Fatu Basin, from thence to the point called Subina;
5. Descending thence by the thalweg of the Fatu Basin to the Ke An ; thence to the Nai Nad ;
6. Crossing the Nai Nao and descending into Tut Nonie, along the thalweg of the Tut Nonie to the Noel Ekan ;
7. Following the thalweg of the Noel Ekan to the affluent the Sonau ; along the thalweg of this affluent to its source, and thence to the river Nivo Nono ;
8. Ascending along the thalweg of this river to its source, and pass- ing the point called Ohoe Baki, ending at the source of the Nono Balena;
9. Following the thalweg of this river, the thalweg of the Nono Nise and that of the Noel Bilomi to the affluent of the latter, the Oe Sunan ;
10. From this point, the boundary follows the thalweg of the Oe Sunan, crosses as much as possible Nipani and Kelali (Keli) and,
398 THE HAGUE COURT REPORTS
extending to the source of the Noel Meto, it follows the thalweg of the latter river even to its mouth.
ARTICLE 4
That part of the boundary between Ambenu-Oikussi and the Dutch possessions defined under Article 3, No. 10, shall be surveyed and de- markated on the ground as soon as possible.
The survey of the said part of the boundary and its demarkation on the land shall be attested by a proems-verbal accompanied by a map to be traced in duplicate which shall be submitted for the approval of the high contracting Parties ; after their approval, the said documents shall be signed in the name of the respective Governments.
Only after the said documents have been signed, the high contracting Parties shall acquire sovereignty over the regions mentioned under Articles 1 and 2.
ARTICLE 5
The boundary between the Dutch possessions in the western part and of the Portuguese possessions in the eastern part of the Island of Timor shall from the north to the south follow a line:
1. Starting from the mouth of the Mota Biku (Silaba) along the thalweg of this river to its affluent the We Bedain, along the thalweg of the We Bedain, to the Mota Asudaat (Assudat), along the thal- weg of this river to its source, and following thence in the direction north to south the hills of the Kleek Teruin (Klin Teruin) and of the Berenis (Birenis) Kakotun;
2. Thence to the river Muda Sorun, following the thalweg of this river and that of the Tuah Naruk even to the river Telau (Talau) ;
3. Following the thalweg of the Telau to the river Malibaka along the thalweg of this river, the thalweg of the Mautilu and that of the Pepies to the mountain Bulu Hulu (Bulu Bulu) ;
4. From there to Karawa Kotun, from the latter along the thalweg of the river Tafara along the thalweg of this river to its source called Mota Tiborok (Tibor), and ascending from there to the summit Dato ,Miet and descending to the Mota Alun;
5. Along the thalweg of the Mota Alun, along the thalweg of the Mota Sukaer (Sukar), and that of the Mota Baukama even to the affluent of the latter called Kalan-Fehan;
6. Passing across the mountains Tahi Fehu, Fatu Suta, Fatu Rusa, passing the large tree called Halifea and the summit Uas Lulik. then crossing the river We Merak where the latter receives its affluent
THE ISLAND OF TIMOR CASE 399
the We Nu, thence crossing the large boulder called Fatu Rokon and the summits Fitun Monu, Debu Kasabauk, Ainin Matan and Lak Fuin ;
7. From Lak Fuin to the point where the Hali Sobuk connects with the Mota Haliboi and along the thalweg of this river to its source;
8. From this source even to that of the Mota Bebulu, along the thal- weg of this river to the We Diek, ascending to the summits Ai Kakar and Takis, descending into the Mota Masin and following the thalweg of the Mota Masin and of its mouth called Mota Talas.
ARTICLE 6
With the exception of the provisions of Article 4, the boundaries defined under Articles 3 and 5 are traced on the maps annexed to the present convention and signed by the respective plenipotentiaries.
ARTICLE 7
The territories respectively conveyed shall be vacated and the de- markation thereon entrusted to competent authorities within six months after the approval of the proems-verbal referred to under Article 4.
ARTICLE 8
The archives, maps and other documents relating to the territories transferred shall be transmitted to the new authorities at the same time as the territories themselves.
ARTICLE 9
Navigation upon the rivers forming the boundaries shall be free to the subjects of the two high contracting Parties, except for the trans- portation of firearms and ammunition.
ARTICLE 10
When the territory shall have been transferred, stone posts indi- cating the year of the present convention, of a form and dimensions proper to the object that they are intended to fulfil, shall with due solemnity be set at a proper place on the bank near the mouth of the rivers hereinafter named. The Dutch posts shall be set on the west- ern banks of the Mota Biku and the Mota Masin, and the Portuguese posts upon the eastern banks of the said rivers. Four stone posts shall be provided by the Dutch Government at the expense of the two Governments and the Dutch Government shall place a vessel of the
400 THE HAGUE COURT REPORTS
royal navy at the disposal of the respective authorities for the solemn transfer of the territories conveyed and for the setting of the posts Furthermore, where it is not formed by natural limits, the boundary shall by mutual agreement be demarkated on the ground by the local authorities.
ARTICLE 11
With the exception of the provisions of Article 4, a proems-verbal shall be drawn up in the French language recording the transfer of the territories and the setting of the posts.
The proces-verbal shall be drawn up in duplicate and signed by the respective authorities of the two countries.
ARTICLE 12
Freedom of worship is mutually guaranteed to the inhabitants of the territories exchanged by the present convention.
ARTICLE 13
The high contracting Parties mutually recognize, in case of cession in part or in whole of their territories or of their rights of sovereignty in the archipelago of Timor and Solor, the right of preference regard- ing terms similar or equivalent to those which shall have been offered.
ARTICLE 14
All disputes regarding the interpretation or the execution of the present convention, if they can not be settled in a friendly manner, shall be referred to the Permanent Court of Arbitration in conformity with the provisions set forth in Chapter II of the international Convention of July 29, 1899, for the pacific settlement of international disputes.
ARTICLE 15
The present convention shall be ratified and the ratifications thereof exchanged as soon as possible after the approbation by the legislatures of the two countries.
In faith of which the respective plenipotentiaries have signed the present convention and affixed their seals thereto. Done in duplicate at The Hague, October 1, 1904
(L. S.) (Signed) BN MELVIL DE LYNDEN
(L. S.) (Signed) IDENBURG
(L. S.) (Signed) CONDE DE SELIR
REPORTS
OF THE
HAGUE COMMISSIONS OF INQUIRY
THE NORTH SEA or DOGGER BANK CASE1
between
GREAT BRITAIN and RUSSIA Findings Reported February 26, 1905
Syllabus
In October, 1904, during the Russo-Japanese war, the Admiral of the Russian Baltic fleet, then coaling off the coast of Norway, re- ceived rumors from several sources of the presence of Japanese tor- pedo boats in the vicinity, and on this account the fleet set sail for the Far East twenty-four hours ahead of schedule. As the last division of the fleet, in immediate charge of the Admiral, was passing through the North Sea in the early hours of the morning of October 9, 1904, it came upon what afterwards proved to be an English fishing fleet from Hull, England. The Russians, under a misapprehension that the English vessels were the Japanese torpedo boats, opened fire, with the result that one fishing boat was sunk and others damaged, while two fishermen were killed and six injured.
In order to prevent serious results from this incident, France sug- gested resort to an international commission of inquiry, as provided for in the convention for the pacific settlement of international dis- putes, adopted by the Hague Conference of 1899. The suggestion was accepted by Great Britain and Russia, and an agreement was signed on November 25, 1904,2 which invested a commission composed of admirals from the British, Russian, United States, French and Aus- trian navies with authority to find the facts in dispute and to fix re- sponsibility. The commission held sessions at Paris from December 22, 1904, to February 26, 1905, on which date its report was rendered.
The conclusion reached was that there were no torpedo boats either among the trawlers or anywhere near and that the opening of fire by the Russian Admiral was not justified. His action under the circum- stances was not, however, such as to cast discredit upon his military abilities or humanity or that of the personnel of his squadron. Russia accepted the decision and paid damages to the extent of about $300,000.
iThis case is also known as "The Hull Incident." *Post, p. 410.
404 THE HAGUE COURT REPORTS
REPORT OF THE COMMISSION
Report of the commissioners, drawn up in accordance with Article 6 of the declaration of St. Petersburg of Nozwmbcr 12/25, 1904. — Paris, February 26, 1905*
1. The commissioners, after a minute and prolonged examina- tion of the whole of the facts brought to their knowledge in regard to the incident submitted to them for inquiry by the declaration of St. Petersburg of the 12th (25th) November, 1904,2 have proceeded to make, in this report, an analysis of these facts in their logical sequence.
By making known the prevailing opinion of the commission on each important or decisive point of this summary, they consider that they have made sufficiently clear the causes and the consequences of the incident in question, as well as the deductions which are to be drawn from them with regard to the question of responsibility.
2. The second Russian squadron of the Pacific fleet, under the command-in-chief of Vice- Admiral Aide-de-camp General Rojdest- vensky, anchored on the 7th (20th) October, 1904, off Cape Skagen, with the purpose of coaling before continuing its voyage to the Far East.
It appears, from the depositions made, that, from the time of the departure of the squadron from the roadstead of Reval, Ad- miral Rojdestvensky had had the vessels under his charge take minute precautions in order to be fully prepared for a night attack by torpedo boats, either at sea or at anchor.
These precautions seemed to be justified by the numerous reports of the agents of the Imperial Government regarding possible hostile attacks, which in all likelihood would take the form of torpedo boat attacks.
Moreover, during his stay at Skagen, Admiral Rojdestvensky had been warned of the presence of suspect vessels on the coast of Nor- way. He had learned, also, from the commander of the transport Bakan coming from the north, that he had seen on the previous night four torpedo boats, carrying a single light only, and that at the masthead.
^•American Journal of International Law, vol. 2, p. 931. For the original French text, see Appendix, p. 609. *Postf p. 410.
THE NORTH SEA OR DOGGER BANK CASE 405
This news made the Admiral decide to start twenty-four hours earlier.
3. Consequently, each of the six distinct divisions of the fleet got under way, separately and in turn, and reached the North Sea independently, in the order indicated in Admiral Rojdestvensky's report; that flag-officer commanding in person the last division, formed by the four new battleships Prince Souvoroff, Emperor Alexander III, Borodino, Orel, and the transport Anadyr.
This division left Skagen on the 7th (20th) October at 10 o'clock in the evening.
A speed of twelve knots was ordered for the first two divisions, and of ten knots for the following divisions.
4. Between 1 :30 and 4:15 on the afternoon of the next day, the 8th (21st) October, all the divisions of the squadron passed in turn the English steamer Zero, whose captain examined the different units so attentively that they could be recognized from his descrip- tion of them.
The results of his observations are, moreover, in general agree- ment with the statements in Admiral Rojdestvensky's report.
5. The last vessel to pass the Zero was, according to his descrip- tion of her, the Kamchatka.
This transport, which originally was in a division with the Dmitri Donskoi and the Aurora, was, therefore, left behind and isolated about ten miles to the rear of the squadron. She had been obliged to slaken speed in consequence of damage to her engines.
This accidental delay was, perhaps, incidentally the cause of the events which followed.
6. Toward 8 o'clock in the evening this transport did, in fact, meet the Swedish vessel Aldebaran and other unknown vessels and open fire on them, doubtless in consequence of the anxiety due to the circumstances of her momentary isolation, her damaged engines, and her poor fighting ability.
However this may be, the commander of the Kamchatka, at 8 :45 o'clock, sent a message by wireless telegraphy to his commander-in- chief regarding this encounter, stating that he was "attacked on all sides by torpedo boats."
7. In order to understand the effect which this news had on Admiral Rojdestvensky's subsequent decisions, it must be remem-
406 THE HAGUE COURT REPORTS
bered that, in his opinion, the attacking torpedo boats, of whose presence fifty miles to the rear of the division which he commanded, he was thus, rightly or wrongty, informed, might overtake and at- tack him about 1 o'clock in the morning.
This information led Admiral Rojdestvensky to signal to his ships about 10 o'clock in the evening to redouble their vigilance and look out for an attack by torpedo boats.
8. On board the Souvoroff the admiral deemed it essential that one of the two superior officers of his staff should be on watch on the captain's bridge during the night in order to observe, in his place, the progress of the squadron and to warn him at once if any incident occurred.
On board all the ships, moreover, the Admiral's standing orders to the officer of the watch were to open fire in case of an evident and imminent attack by torpedo boats.
If the attack were from the front he should open fire on his own initiative, and, in the contrary case, which would be much less pressing, he should refer to his commanding officer.
With regard to these orders, the majority of the commissioners consider that they were in no way excessive in time of war, and particularly in the circumstances, which Admiral Rojdestvensky had every reason to consider very alarming, seeing that it was im- possible for him to verify the accuracy of the warnings that he had received from the agents of his Government.
9. Toward 1 o'clock in the morning of the 9th (22d) October, 1904, the night was rather dark, a slight, low fog partly clouding the air. The moon only showed intermittently between the clouds. A moderate wind blew from the southeast, raising a long swell, which gave the ships a roll of 5° on each side.
The course followed by the squadron toward the southwest would have taken the last two divisions, as the event proved, close past the usual fishing ground1 of the fleet of Hull trawlers, which was composed of some thirty of these small steamboats, and was spread over an area of several miles.
It appears from the concordant testimony of the British witnesses that all these boats carried their proper lights, and were trawling in accordance with their usual rules, under the direction of their
1 Dogger Bank.
THE NORTH SEA OR DOGGER BANK CASE 407
"admiral," and in obedience to the signals given by the conventional rockets.
10. Judging from the communications received by wireless tele- graphy, the divisions which preceded that of Admiral Rojdestven- sky across these waters had signaled nothing unusual.
It became known afterward, in particular, that Admiral Folker- sam, having been led to pass round the fishing fleet on the north, threw his electric searchlight on the nearest trawlers at close quar- ters, and, having seen them to be harmless vessels, quietly continued his voyage.
11. A short time afterwards the last division of the squadron, led by the Souvoroff flying Admiral Rojdestvensky's flag, arrived in its turn close to the spot where the trawlers were fishing.
The direction in which this division was sailing led it nearly toward the main body of the fleet of trawlers, round which and to the south of which it would therefore be obliged to sail, when the attention of the officers of the watch on the bridges of the Souvoroff was attracted by a green rocket, which put them on their guard. This rocket, sent up by the "admiral" of the fishing fleet, indicated in reality, according to regulation, that the trawlers were to trawl on the starboard tack.
Almost immediately after this first alarm, and as shown by the evidence, the lookout men, who, from the bridges of the Souvoroff, were scanning the horizon with their night glasses, discovered "on the crest of the waves on the starboard bow, at an approximate dis- tance of eighteen to twenty cables," a vessel which aroused their suspicions because they saw no light, and because she appeared to be bearing down upon them.
When the suspicious-looking vessel was shown up by the search- light, the lookout men thought they recognized a torpedo boat pro- ceeding at great speed.
It was on account of these appearances that Admiral Rojdest- vensky ordered fire to be opened on this unknown vessel.
The majority of the commissioners express the opinion, on this subject, that the responsibility for this action and the results of the fire to which the fishing fleet was exposed are to be attributed to Admiral Rojdestvensky.
12. Almost immediately after fire was opened to starboard, the
408 THE HAGUE COURT REPORTS
Souvoroff caught sight of a little boat on her bow barring the way, and was obliged to turn sharply to the left to avoid running it down. This boat, however, on being lit up by the searchlight, was seen to be a trawler.
To prevent the fire of the ships being directed against this harm- less vessel, the searchlight was immediately thrown up at an angle of 45°.
The admiral then made the signal to the squadron "not to fire on the trawlers."
But at the same time that the searchlight had lit up this fishing vessel, according to the evidence of witnesses, the lookout men on board the Souvoroff perceived to port another vessel, which ap- peared suspicious from the fact of its presenting the same features as were presented by the object of their fire to starboard.
Fire was immediately opened on this second object, and was, therefore, being kept up on both sides of the ship, the line of ships having resumed their original course by a correcting movement without changing speed.
13. According to the standing orders of the fleet, the Admiral indicated the objects against which the fire should be directed by throwing his searchlight upon them; but as each vessel swept the horizon in every direction with her own searchlights to avoid being taken by surprise, it was difficult to prevent confusion.
The fire, which lasted from ten to twelve minutes, caused great loss to the trawlers. Two men were killed and six others wounded ; the Crane sank ; the Snipe, the Mino, the Moulmein, the Gull, and the Majestic were more or less damaged.
On the other hand, the cruiser Aurora was hit by several shots.
The majority of the commissioners observe that they have not sufficiently precise details to determine what was the object fired on by the vessels; but the commissioners recognize unanimously that the vessels of the fishing fleet did not commit any hostile act ; and, the majority of the commissioners being of opinion that there were no torpedo boats either among the trawlers nor anywhere near, the opening of the fire by Admiral Rojdestvensky was not justifiable.
The Russian commissioner, not considering himself justified in sharing this opinion, expresses the conviction that it was precisely
THE NORTH SEA OR DOGGER BANK CASE 409
the suspicious-looking vessels approaching the squadron with hostile intent which provoked the fire.
14. With reference to the real objectives of this nocturnal firing, the fact that the Aurora was hit by several 47-millimeter and 75- millimeter shells would lead to the supposition that this cruiser, and perhaps even some other Russian vessels, left behind on the route followed by the Souvoroff unknown to that vessel, might have pro- voked and been the object of the first few shots.
This mistake might have been caused by the fact that this vessel, seen from astern, was apparently showing no light, and by a noc- turnal optical illusion which deceived the lookout on the flagship.
On this head the commissioners find that they are without im- portant information which would enable them to determine the reasons why the fire on the port side was continued.
According to their conjecture, certain distant trawlers might have been mistaken for the original objectives, and thus fired upon di- rectly. Others, on the contrary, might have been struck by a fire directed against more distant objectives.
These considerations, moreover, are not in contradiction with the impressions formed by certain of the trawlers, who, finding that they were struck by projectiles and remained under the rays of the searchlights, might believe that they were the object of a direct fire.
15. The time during which the firing lasted on the starboard side, even taking the point of view of the Russian version, seems to the majority of the commissioners to have been longer than was neces- sary.
But that majority considers that, as has already been said, they have not before them sufficient data as to why the fire on the port side was continued.
In any case, the commissioners take pleasure in recognizing, unanimously, that Admiral Rojdestvensky personally did everything he could, from beginning to end of the incident, to prevent trawlers, recognized as such, from being fired upon by the squadron.
16. Finally, the Dmitri Donskoi having signaled her number, the Admiral decided to give the general signal for "cease firing." The line of his ships then continued on their way, and disappeared to the southwest without having stopped.
On this point the commissioners recognize, unanimously, that
410 THE HAGUE COURT REPORTS
after the circumstances which preceded the incident and those which produced it, there was, at the cessation of fire, sufficient uncer- tainty with regard to the danger to which the division of vessels was exposed to induce the Admiral to proceed on his way.
Nevertheless, the majority of the commissioners regret that Ad- miral Rojdestvensky, in passing the Straits of Dover, did not take care to inform the authorities of the neighboring maritime Powers, that, as he had been led to open fire near a group of trawlers, these boats, of unknown nationality, stood in need of assistance.
17. In concluding this report, the commissioners declare that their findings, which are therein formulated, are not, in their opin- ion, of a nature to cast any discredit upon the military qualities or the humanity of Admiral Rojdestvensky, or of the personnel of his squadron.
SPAUN FOURNIER
DOUBASSOFF
LEWIS BEAUMONT CHARLES HENRY DAVIS
AGREEMENT FOR INQUIRY
Declaration between Great Britain and Russia, relating to the consti- tution of an international commission of inquiry on the subject of the North Sea incident. — Signed at St. Petersburg, November 12/25, 1904*
His Britannic Majesty's Government and the Imperial Russian Gov- ernment having agreed to entrust to an international commission of inquiry, assembled conformably to Articles 9 to 14 of the Hague Con- vention of the 29th (17th) July, 1899, for the pacific settlement of international disputes, the task of elucidating by means of an impartial and conscientious investigation the questions of fact connected with the incident which occurred during the night of the 21st-22d (8th-9th) October, 1904, in the North Sea (on which occasion the firing of the guns of the Russian fleet caused the loss of a boat and the death of two persons belonging to a British fishing fleet, as well as damages to
1 American Journal of International Law, vol. 2, p. 929. For the original French text, see Appendix, p. 614.
THE NORTH SEA OR DOGGER BANK CASE 411
other boats of that fleet and injuries to the crews of some of those boats), the undersigned, being duly authorized thereto, have agreed upon the following provisions :
ARTICLE 1
The international commission of inquiry shall be composed of five members (commissioners), of whom two shall be officers of high rank in the British and Imperial Russian navies, respectively. The Govern- ments of France and of the United States of America shall each be re- quested to select one of their naval officers of high rank as a member of the commission. The fifth member shall be chosen by agreement between the four members above-mentioned.
In the event of no agreement being arrived at between the four com- missioners as to the selection of the fifth member of the commission, His Imperial and Royal Majesty the Emperor of Austria, King of Hungary, shall be invited to select him.
Each of the two high contracting parties shall likewise appoint a legal assessor to advise the commissioners, and an agent officially en- powered to take part in the labors of the commission.
ARTICLE 2
The commission shall inquire into and report on all the circum- stances relative to the North Sea incident, and particularly on the question as to where the responsibility 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.
ARTICLE 3
The commission shall settle the details of the procedure which it will follow for the purpose of accomplishing the task with which it has been entrusted.
ARTICLE 4
The two high contracting Parties undertake to supply the interna- tional commission of inquiry, to the greatest possible extent, with all the means and facilities necessary to enable it to thoroughly investi- gate and correctly estimate the matters in dispute.
ARTICLE 5
The commission shall assemble at Paris as soon as possible after the signature of this agreement.
412 THE HAGUE COURT REPORTS
ARTICLE 6
The commission shall present its report to the two high contracting Parties signed by all the members of the commission.
ARTICLE 7
The commission shall arrive at all its decisions by a majority vote of the five commissioners.
ARTICLE 8
The two high contracting Parties undertake to bear, each on its part, the expenses of the inquiry made by it previously to the as- sembly of the commission. The expenses incurred by the international commission, after the date of its assembly, in organizing its staff and in conducting the investigations which it will have to make, shall be shared equally by the two Governments.
In witness whereof the undersigned have signed the present declara- tion and have affixed their seals thereto.
Done in duplicate at St. Petersburg, November 25 (12), 1904.
(Signed) CHARLES HARDINGE (Signed) COUNT LAMSDORFF
ADDITIONAL DOCUMENT
Supplementary protocol to the Declaration between Great Britain and Russia relative to the constitution of an international commission of inquiry on the subject of the North Sea incident. — Signed at St. Petersburg, November 12 / '25, 1904.*
The undersigned have met to-day in the building of the Imperial Ministry of Foreign Affairs to proceed to the signature of the declara- tion between the Government of His Britannic Majesty and the Im- perial Russian Government, concerning the institution of a commission of inquiry on the subject of the North Sea incident.
After the reading of the respective instruments, found in good and due form, the signature of the said declaration took place in the usual manner.
In faith of which the undersigned have drawn up the present pro- tocol and attached the seals of their arms.
Done in duplicate at St. Petersburg, November 12 (25), 1904.
(L. S.) CHARLES HARDINGE (L. S.) COUNT LAMSDORFF
translation. For the original French text, see Appendix, p. 615.
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES
between
FRANCE and ITALY Findings Reported May 2, 1913
Syllabus
On January 25, 1912, during the Turco-Italian war, the French mail steamer Tavignano was seized by the Italian torpedo boat Fulminc off the coast of Tunis and conducted to Tripoli under suspicion of having on board contraband of war. The suspicion proved to be un- warranted and the vessel was released on the following day.
On the same date, in the same waters, the two Tunisian mahones, Camouna and Gaulois, were fired upon by the Italian torpedo boat Canopo.
The French Government claimed indemnity for these acts from the Italian Government on the ground that the vessels when encountered were within the territorial waters of Tunis and were not, according to international law, subject to either attack or capture. On the other hand, Italy maintained that the acts complained of took place on the high seas and that no rule of international law had been violated.
The cases were submitted to a commission of inquiry by agreements signed April 15 and May 20, 1912.1 The commission made its report on July 23d, but as no definite conclusion was reached a compromis was signed on November 8th2 submitting the case for arbitration to the tribunal in charge of the Carthage and Manouba cases.8 No decision was rendered by the tribunal, the matter being finally settled out of court by a special agreement dated May 2, 19 13,4 according to the terms of which Italy agreed to pay an indemnity to the French Gov- ernment of five thousand francs for distribution among the various individuals who had sustained losses.
REPORT OF THE COMMISSION
Report of the commission of inquiry constituted in virtue of the agreement for inquiry signed at Rome between France and Italy, May 20, 1912. — Malte, July 23, 1012*
The commissioners, after having examined and compared all data gathered both from the documents presented by the two parties
*Post, pp. 417, 419. *Post, p. 419. *Ante, pp. 329, 341.
'Post, p. 421.
BTranslation. For the original French text, see Appendix, p. 616.
412 THE HAGUE COURT REPORTS
ARTICLE 6
The commission shall present its report to the two high contracting Parties signed by all the members of the commission.
ARTICLE 7
The commission shall arrive at all its decisions by a majority vote of the five commissioners.
ARTICLE 8
The two high contracting Parties undertake to bear, each on its part, the expenses of the inquiry made by it previously to the as- sembly of the commission. The expenses incurred by the international commission, after the date of its assembly, in organizing its staff and in conducting the investigations which it will have to make, shall be shared equally by the two Governments.
In witness whereof the undersigned have signed the present declara- tion and have affixed their seals thereto.
Done in duplicate at St. Petersburg, November 25 (12), 1904.
(Signed) CHARLES HARDINGE (Signed) COUNT LAMSDORFF
ADDITIONAL DOCUMENT
Supplementary protocol to the Declaration between Great Britain and Russia relative to the constitution of an international commission of inquiry on the subject of the North Sea incident. — Signed at St. Petersburg, November 12/25* 1904*
The undersigned have met to-day in the building of the Imperial Ministry of Foreign Affairs to proceed to the signature of the declara- tion between the Government of His Britannic Majesty and the Im- perial Russian Government, concerning the institution of a commission of inquiry on the subject of the North Sea incident.
After the reading of the respective instruments, found in good and due form, the signature of the said declaration took place in the usual manner.
In faith of which the undersigned have drawn up the present pro- tocol and attached the seals of their arms.
Done in duplicate at St. Petersburg, November 12 (25), 1904.
(L. S.) CHARLES HARDINGE (L. S.) COUNT LAMSDORFF
translation. For the original French text, see Appendix, p. 615.
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES
between
FRANCE and ITALY Findings Reported May 2, 1913
Syllabus
On January 25, 1912, during the Turco-Italian war, the French mail steamer Tavignano was seized by the Italian torpedo boat Fulminc off the coast of Tunis and conducted to Tripoli under suspicion of having on board contraband of war. The suspicion proved to be un- warranted and the vessel was released on the following day.
On the same date, in the same waters, the two Tunisian mahones, Camouna and Gaulois, were fired upon by the Italian torpedo boat Canopo.
The French Government claimed indemnity for these acts from the Italian Government on the ground that the vessels when encountered were within the territorial waters of Tunis and were not, according to international law, subject to either attack or capture. On the other hand, Italy maintained that the acts complained of took place on the high seas and that no rule of international law had been violated.
The cases were submitted to a commission of inquiry by agreements signed April 15 and May 20, 1912.1 The commission made its report on July 23d, but as no definite conclusion was reached a compromis was signed on November 8th2 submitting the case for arbitration to the tribunal in charge of the Carthage and Manouba cases.8 No decision was rendered by the tribunal, the matter being finally settled out of court by a special agreement dated May 2, 19 13,4 according to the terms of which Italy agreed to pay an indemnity to the French Gov- ernment of five thousand francs for distribution among the various individuals who had sustained losses.
REPORT OF THE COMMISSION
Report of the commission of inquiry constituted in virtue of the agreement for inquiry signed at Rome between France and Italy, May 20, IOI^. — Malte, July 23, 1012*
The commissioners, after having examined and compared all data gathered both from the documents presented by the two parties
iPost, pp. 417, 419. *Post, p. 419. *Ante, pp. 329, 341.
*Post, p. 421.
5Translation. For the original French text, see Appendix, p. 616.
414 THE HAGUE COURT REPORTS
and from the evidence in the case ; after having done the important part, which was the weighing of all this evidence ; and after having taken into consideration the degree of uncertainty appertaining thereto, has reached the following conclusions:
The evidence and documents presented are not of a nature to permit of determination of the exact geographical points where oc- curred the various acts which have been submitted to inquiry, but simply of the zones in which they occurred, it being impossible to decide upon an exact point in the zones.
1. Regarding the point where the Tavignano stopped.
This point is within the area of a rectilinear quadrilateral set off by the following four apexes :
Apex C. . .Latitude 33°29'20" North,
Longitude 8°56'40" East of Paris.
Apex B. . .Latitude 33P29'10" North,
Longitude 8°55'10" East of Paris.
Apex A. . .Latitude 33°26'30" North,
Longitude 8°54'40" East of Paris.
Apex D. . .Latitude 33°26'30" North,
Longitude 8t56'20" East of Paris.
2. Regarding the pursuit of the mahones : A. By the Fulmine.
The Fulmine, setting out from an indeterminate point in the zone above defined, pursued the mahones, perhaps going out of that zone, in a direction impossible to determine definitely but which was either southeast or southwest by south.
The pursued mahones were located at the following points, which are the centers of inexact circles of half-mile radii :
Camouna . . Latitude 33°24' 10" North,
Longitude 9°00'15" East of Paris.
Gaulois. . . Latitude 33°22'40W North,
Longitude 8°59'55" East of Paris.
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES 415
After this pursuit the Fulmine returned to moor near the Tavig- nano, at point H, which the commission has chosen as the center of an inexact circle of a half-mile radius.
B. The Canopo cannonaded the Gaulois when that mahone was at a point indicated above and when it (the Canopo) was proceeding in a northerly direction from the point indicated in its log-book by
Latitude 33°20'45" North, Longitude 9°00'50" East of Paris.
which point the commission has also adopted as the center of an inexact circle of a half-mile radius.
The commission, after its visit to the localities and after verifi- cation in the waters of Zarzis, decided, in reporting, to use for the hydrography, configuration and nature of the coast and neighbor- ing banks the French Hydrographic Service Card No. 4247. The commission recalls the fact that its verification was the object of the proces-verbal of July 15, 1912, which is numbered 68.
The president having read the present report to the commission- ers, the report and its conclusions have been unanimously adopted. Done at Malte, in triplicate, July 23, 1912.
Commissioners: GUISEPPE GENOESE ZERBI SOMBORN SEGRAVE
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES 417
AGREEMENT FOR INQUIRY
Convention of Inquiry in the "Tcwignano" "Camouna" and "Gaulois" Cases. — Signed at Rome, May 20,
The Government of the French Republic and the Royal Italian Government, equally desirous of settling the dispute caused by the capture and temporary detention of the French mail steamer Tavig- nanOj on January 25, 1912, by the Royal Italian naval vessel Fulmine, as well as the firing upon the mahones Camouna and Gaulois, on Jan- uary 25, 1912, by the Italian torpedo boat Canopo;
Have resolved, conformably to Part III of the Hague Convention of October 18, 1907, for the pacific settlement of international dis- putes, to confide to an international commission of inquiry the task of clearing up the actual circumstances under which the said capture and detention, and the said firing took place;
And have, to this end, agreed upon the following provisions :
ARTICLE 1
An international commission of inquiry, composed as hereinafter stipulated, is entrusted:
I. To investigate, mark and determine the exact geographic point where occurred: (1) the capture of the French mail steamer Tavig- nano by the Royal Italian naval vessel Fulmine, on January 25, 1912; (2) the pursuit of the mahones Camouna and Gaulois by the same vessel and also by the Royal Italian naval vessel Canopof and the firing by the latter upon the said mahones;
II. To determine exactly the hydrography, configuration and nature of the coast and of the neighboring banks, the distance between any points which one or the other of the commissioners might deem useful to mark, and the distance from these points to those where the above- mentioned deeds occurred;
III. To make a written report of the result of its investigation.
ARTICLE 2
The international commission of inquiry shall be composed of three commissioners, of which two shall be national naval officers of France
translation. For the original French text, see Appendix, p. 617.
418 THE HAGUE COURT REPORTS
and Italy, of a rank at least equal to that of captain. The Government of His Britannic Majesty shall be asked to choose the third commis- sioner from among his naval officers, of a higher or the highest rank. The latter shall assume the office of president.
Two secretaries shall be appointed, one by the Government of the French Republic and the other by the Royal Italian Government, as registrars of the commission, and they shall assist it in its operations.
ARTICLE 3
The international commission of inquiry shall be qualified to secure all information, interrogate and hear all witnesses, to examine all papers on board either of the said ships, vessels and mahones, to pro- ceed, if necessary, with sounding, and, in general, to resort to all sources of information calculated to bring out the truth.
The two Governments agree in this respect to furnish the commis- sion with all possible means and facilities, particularly those of trans- portation, to enable it to accomplish its task.
ARTICLE 4
The international commission of inquiry shall meet at Malte as soon as possible and shall have the power to change its place of meeting conformably to Article 20 of the Hague Convention of October 18, 1907, for the pacific settlement of international disputes.
ARTICLE 5
The French language shall be used by the international commission of inquiry; however, in their deliberations the commissioners may use their respective languages.
ARTICLE 6
Within a period not to exceed fifteen days from the date of its first meeting the international commission of inquiry shall arrive at the conclusions of its report and shall communicate them to each of the two Governments.
ARTICLE 7
Each party shall pay its own expenses and an equal share of the expenses of the commission.
ARTICLE 8
All points not covered by the present convention of inquiry, espe-
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES 419
cially those relating to the procedure of inquiry, shall be regulated by the provisions of the Hague Convention of October 18, 1907, for the pacific settlement of international disputes. Done in duplicate, at Rome, May 20, 1912.
Signed : CAMILLE BARRERE DI SAN GIULIANO
ADDITIONAL DOCUMENTS
Agreement between France and Italy relative to the "Tavigncmo" "Camouna" and tf Gaulois" Cases. — Signed at Rome, April 15,
The French and Italian Governments have decided to submit to an international commission of inquiry the questions of fact raised:
1. On the subject of the seizure of the French steamer Tairignano by the Italian torpedo boat Fulmine, on January 25, 1912, in the waters of Ras-Zira;
2. On the subject of the cannon shots fired by the torpedo boat Canopo, on the same day and in the same waters, upon the two Tuni- sian mahones Camouna and Gaulois.
After the said commission shall have terminated its investigation, the result shall be transmitted, if it is deemed necessary, to the arbitral tribunal charged with the settling of the Carthage and Manouba af- fairs, in order that it may decide the question of law, fix the responsi- bility and determine the moral and material reparation which are due. Rome, April 15, 1912.
Signed: CAMILLE BARRERE DI SAN GIULIANO
Compromis of arbitration relative to the questions raised on the sub- ject of the seizure of the French steamer "Tavignano" and on the subject of the cannon shots fired by an Italian torpedo boat upon two Tunisian mahones. — Signed at Paris, November 8,
The Government of the French Republic and the Royal Italian Government, having agreed, on April 15, 1912:8
1. To submit to an international commission of inquiry the questions raised on the subject of the seizure of the French steamer Tavignano
translation. For the original French text, see Appendix, p. 621. 2/<J. This controversy was settled out of court by a special agreement, see post, p. 421. 8 See supra.
420 THE HAGUE COURT REPORTS
by the Italian torpedo boat Fidmine on January 25, 1912, in the waters of Raz-Zira and on the subject of the cannon shots fired by the Italian torpedo boat Canopo on the same day and in the same waters, upon the two Tunisian mahones Camouna and Gaulois;
2. To transmit, if necessary, the result of the inquiry to the arbitral tribunal charged with the settling of the Carthage and Manouba af- fairs, in order that it may decide the question of law, fix the responsi- bility and determine the moral and material reparation which are due ;
Having taken recognition of the report presented July 23, 1912, by the said international commission of inquiry;
The undersigned, duly authorized for that purpose, have agreed upon the following compromis;
ARTICLE 1
The arbitral tribunal charged with the settling of the affairs of the Carthage and Manouba is also authorized to pronounce upon the inci- dents concerning the seizure of the French steamer Tavignano and the cannon shots fired upon the Tunisian mahones, as well as to decide the questions of law, fix the responsibility and determine the moral and material reparation which are due.
ARTICLE 2
In all that concerns the questions of fact raised by the two incidents, the arbitral tribunal must make use of the report presented by the international commission of inquiry of July 23, 1912, as well as the proces-verbanx of the said commission.
The said report and procts-verbaux shall be printed at the expense and under the supervision of both parties and with the least possible delay.
ARTICLE 3
On January 25, 1913, each party shall deposit with the Bureau of the Permanent Court of Arbitration fifteen copies of its memorial, with certified copies of all documents and papers which it intends to submit in the case.
The Bureau shall' guarantee their transmission without delay to the arbitrators and parties, to wit: two copies for each arbitrator; three copies for each party; two copies shall remain in the archives of the Bureau.
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES 421
On March 1, 1913, each party shall deposit, under the same condi- tions as above, its counter-memorial, with the papers appertaining thereto, and its final conclusions.
The tribunal shall meet at The Hague, in the second fortnight of March, upon the convocation of its president.
ARTICLE 4
For all points not covered by the present compromis, the stipulations of the compromis of March 6, 1912,1 and of the agreement of April 4, 1912,2 shall be applicable to the present litigation. Done at Paris, November 8, 1912.
(Signed) L. RENAULT (Signed) G. FUSINATO
Agreement between France and Italy settling definitively the "Tavig- nano," "Camouna" and "Gaulots" controversy. — Signed at The Hague, May 2,
As the two affairs of the Carthage and the Manoubo, are about to be settled by arbitral award, the Government of the French Republic and the Royal Italian Government consider that a direct settlement of the affair concerning the Tavignano and the two Tunisian mahones is par- ticularly desirable because of the similar nature of the dispute. The two Governments are especially desirous of taking this course which gives them another opportunity to show the spirit of cordial friend- ship which mutually animates them. To this end they have agreed that it will be equitable to indemnify the individuals for the losses sustained by them. The Royal Italian Government having declared itself willing to pay the sum of five thousand francs for this purpose, the Government of the French Republic has declared that it will accept the same and consider this affair thus definitively settled.
The undersigned have testified to the agreement of their Govern- ments by the present act, which shall have the force of law.
Signed: L. RENAULT G. FUSINATO
Mnte, pp. 336, 351. *Ante, p. 340.
'Translation. For the original French text, see Appendix, p. 623.
TABULAR STATEMENT
OF
AWARDS AND REPORTS
OF THE
HAGUE TRIBUNALS
AND
COMMISSIONS OF INQUIRY
CASES DECIDED BY
Case
Parties
The Pious Fund Case
The Venezuelan Preferential Case The Japanese House Tax Case The Muscat Dhows Case
The Casablanca Case
The Grisbadarna Case
The North Atlantic Coast Fisheries Case
The Orinoco Steamship Company Case The Savarkar Case
The Canevaro Case
The Russian Indemnity Case
The Carthage Case ) The Manouba Case )
The Island of Timor Case
Mexico vs. United States
Germany, Great Britain, Italy vs. Venezuela et al. France, Germany, Great Britain vs. Japan France vs. Great Britain
France vs. Germany
Norway vs. Sweden
Great Britain vs. United States
United States vs. Venezuela France vs. Great Britain
Italy vs. Peru Russia vs. Turkey
France vs. Italy Netherlands vs. Portugal
CASES REFERRED TO
|
Case |
Parties |
|
|
The North Sea or Dogger Bank Case The Tavignano, Camouna and Gaulois Cases8 |
Great Britain vs. France vs. Italy |
Russia |
1Thc name of the president of the tribunal appears first in this list. 2Not a member of the Perma- in charge of the Carthage and Manouba cases, but they were finally settled out of court by a special agree-
424
THE HAGUE TRIBUNALS OF ARBITRATION
|
Date of Agreement |
Dale of Award |
Arbitrators1 |
|
May 22, 1902 |
October 14, 1902 |
Matzen, Sir Edward Fry, Martens, Asser, de |
|
Savornin Lohman |
||
|
May 7, 1903 |
February 22, 1904 |
Mourawieff, Lammasch, Martens |
|
August 28, 1902 |
May 22, 1905 |
Gram, Renault, Motono |
|
October 13, 1904 |
August 8, 19Q5 |
Lammasch, Melville W. Fuller, de Savornin Loh- |
|
man |
||
|
November 10, 1908 |
May 22, 1909 |
Hammarskjold, Sir Edward Fry, Fusinato, |
|
Kriege, Renault |
||
|
March 14, 1908 |
October 23. 1909 |
Locff,2 Beichmann,2 Hammarskjold |
|
January 27, 1909 |
September 7, 1910 |
Lammasch, de Savornin Lohman, George Gray, |
|
Sir Charles Fitzpatrick, Drago |
||
|
February 13, 1909 |
October 25, 1910 |
Lammasch, Beernaert, de Quesada |
|
October 25, 1910 |
February 24, 1911 |
Beernaert, Renault, Lord Desart, Gram, de |
|
Savornin Lohman |
||
|
April 25, 1910 |
May 3, 1912 |
Renault, Fusinato, Calderon |
|
July 22/August 4, 1910 |
November 11, 1912 |
Lardy, Baron de Taube, Mandelstam,2 Herante |
|
Abro Bey,2 Ahmed Rechid Bey8 |
||
|
March 6, 1912 |
May 6, 1913 |
Hammarskjold, Renault, Fusinato, Kriege, Baron |
|
de Taube |
||
|
April 3, 1913 |
June 25, 1914 |
Lardy |
HAGUE COMMISSIONS OF INQUIRY
|
Date of Agreement |
Date of Report |
Commissioners |
|
November 12/25, 1904 April 25, 1912 |
February 26, 1905 July 23, 1912 |
Admirals, Spaum, Doubassoff, Beaumont, Four- nier, Davis Captains James Segrave, Sombron, Zerbi |
nent Court "These cases were also referred, by compromis of November 8, 1912, to the Hague tribunal ment of May 2, 1913.
425
APPENDIX
THE PIOUS FUND CASE
Award of the Tribunal, October 14,
Le Tribunal d'Arbitrage, constitue en vertu du Traite conclu a Washington, le 22 mai 1902, entre les Etats-Unis d'Amerique et les Etats-Unis Mexicains;
Attendu que, par un compromis, redige sous forme de Protocole, entre les Etats-Unis d'Amerique et les Etats-Unis Mexicains, signe a Washington le 22 mai 1902, il a etc convenu et regie que le differend, qui a surgi entre les Etats-Unis d'Amerique et les Etats-Unis Mexicains au sujet du "Fonds Pieux des Calif ornies" dont les annuites etaient reclamees par les Etats-Unis d'Amerique, au profit de 1'Archeveque de San Francisco et de 1'Eveque de Monterey, au Gouvernement de la Republique Mexicaine, serait soumis a un Tribunal d'Arbitrage, cons- titue sur les bases de la Convention pour le reglement pacifique des conftits international,*, signee a La Haye le 29 juillet 1899, qui serait compose de la maniere suivante, savoir:
Le President des Etats-Unis d'Amerique designerait deux Arbitres non-nationaux et le President des Etats-Unis Mexicains egalement deux Arbitres non-nationaux. Ces quatre Arbitres devraient se reunir le 1 septembre 1902 a La Haye afin de nommer le Surarbitre qui, en meme temps, serait de droit le President du Tribunal d'Arbitrage.
Attendu que le President des Etats-Unis d'Amerique a nomme comme Arbitres :
Le tres honorable Sir Edward Fry, Docteur en droit, autrefois siegeant a la Cour d'Appel, Membre du Conseil Prive de Sa Majeste Britannique, Membre de la Cour permanente d'Arbitrage et
Son Excellence Monsieur de Martens, Docteur en Droit, Conseiller Prive, Membre du Conseil du Ministere Imperial des affaires Etran- geres de Russie, Membre de 1'Institut de France, Membre de la Cour permanente d'Arbitrage ;
Attendu que le President des Etats-Unis Mexicains a nomme comme Arbitres :
Monsieur T. M. C. Asser, Docteur en Droit, Membre du Conseil d'Etat des Pays-Bas, ancien Professeur a 1'Universite d'Amsterdam, Membre de la Cour permanente d'Arbitrage et
Monsieur le Jonkheer A. F. de Savornin Lohman, Docteur en Droit, ancien Ministre de Tlnterieur des Pays-Bas, ancien Professeur a 1'Universite libre d'Amsterdam, Membre de la Seconde Chambre des Etats-Generaux, Membre de la Court permanente d'Arbitrage;
Lesquels Arbitres, dans leur reunion du 1 septembre 1902, ont elu, conformement aux Articles XXXII-XXXIV de la Convention de La
iOfficial report, p 107.
430 ORIGINAL -TEXTS
Haye du 29 juillet 1899, comme Surarbitre et President de droit du Tribunal d' Arbitrage:
Monsieur Henning Matzen, Docteur en Droit, Professeur a 1'Uni- versite de Copenhague, Conseiller extraordinaire a la Cour Supreme, President du Landsthing, Membre de la Cour permanente d' Arbitrage.
Et attendu, qu'en vertu du Protocole de Washington du 22 mai 1902, les susnommes Arbitres, reunis en Tribunal d'Arbitrage, de- vraient decider:
1°. Si la dite reclamation des Etats-Unis d'Amerique au profit de 1'Archeveque de San Francisco et de TEveque de Monterey est regie par le principe de la res judicata, en vertu de la sentence arbitral du 1 1 novembre 1875, prononcee par Sir Edward Thornton, en qualite de Surarbitre ;
2°. Si nonf si la dite reclamation est juste, avec pouvoir de rendre tel jugement qui leur semblera juste et equitable;
Attendu que les susnommes Arbitres, ayant examine avec impar- tialite et soin tous les documents et actes, presentes au Tribunal d'Arbitrage par les Agents des Etats-Unis d'Amerique et des Etats- Unis Mexicains, et ayant entendu avec la plus grande attention les plaidoiries orales, presentees devant le Tribunal par les Agents et les Conseils des deux Parties en litige;
Considerant que le litige, soumis a la decision du Tribunal d'Ar- bitrage, consiste dans un conflit entre les Etats-Unis d'Amerique et les Etats-Unis Mexicains qui ne saurait etre regie que sur la base des traites internationaux et des principes du droit international ;
Considerant que les Traites internationaux, conclus depuis 1'annee 1848 jusqu'au compromis du 22 mai 1902, entre les deux Puissances en litige, constatent le caractere eminemment international de ce conflit ;
Considerant que toutes les parties d'un jugement ou d'un arret con- cernant les points debattus au litige s'eclairent et se completent mu- tuellement et qu'elles servent toutes a preciser le sens et la portee du dispositif , a determiner les points sur lesquels il y a chose jugee et qui partant ne peuvent etre remis en question;
Considerant que cette regie ne s'applique pas seulement aux juge- ments des tribunaux institues par 1'Etat, mais egalement aux sentences arbitrates, rendues dans les limites de la competence fixees par le compromis ;
Considerant que ce meme principe doit, a plus forte raison, etre applique aux arbitrages internationaux;
Considerant que la Convention du 4 juillet 1868, conclue entre les deux Etats en litige, avait accorde aux Commissions Mixtes, nominees par ces Etats, ainsi qu'au Surarbitre a designer eventuellement, le droit de statuer sur leur propre competence;
Considerant que dans le litige, soumis a la decisions du Tribunal d'Arbitrage, en vertu du compromis du 22 mai 1902, il y a, non seule- ment identite des parties en litige, mais egalement identite de la ma- tiere, jugee par la sentence arbitrale de Sir Edward Thornton comme Surarbitre en 1875 et amendee par lui le 24 octobre 1876 ;
THE PIOUS FUND CASE 431
Considerant que le Gouvernement des Etats-Unis Mexicains a con- sciencieusement execute la sentence arbitrate de 1875 et 1876, en payant les annuites adjugees par le Surarbitre;
Considerant que, depuis 1869, trente-trois annuites n'ont pas etc payees par le Gouvernement des Etats-Unis Mexicains au Gouverne- ment des Etats-Unis d'Amerique et que les regies de la prescription, etant exclusivement du domaine du droit civil, ne sauraient etre appli- quees au present conflit entre les deux Etats en litige;
Considerant, en ce qui concerne la monnaie, dans laquelle le paie- ment de la rente annuelle doit avoir lieu, que le dollar d'argent, ayant cours legal au Mexique, le paiement en or ne peut etre exige qu'en vertu d'une stipulation expresse;
Que, dans Fespece, telle stipulation n'existant pas, la Partie defen- deresse a le droit de se liberer en argent ;
Que, par rapport a ce point, la sentence de Sir Edward Thornton n'a pas autrement force de chose jugee que pour les vingt et une an- nuites a 1'egard desquelles le surarbitre a decide que le paiement devait avoir lieu en dollars d'or Mexicains, puisque la question du mode de paiement ne concerne pas le fond du droit en litige mais seulement 1'execution de la sentence;
Considerant, que d'apres 1'Article X du Protocole de Washington du 22 mai 1902, le present Tribunal d'Arbitrage aura a statuer, en cas de condamnation de la Republique du Mexique, dans quelle mon- naie le paiement devra avoir lieu ;
Par ces motifs le Tribunal d'Arbitrage decide et prononce a 1'unani- mite ce qui suit :
1°. Que la dite reclamation des Etats-Unis d'Amerique au profit de 1'Archeveque de San Francisco et de 1'Eveque de Monterey est regie par le principe de la res judicata, en vertu de la sentence arbitrale de Sir Edward Thornton du 11 novembre 1875 amendee par lui le 24 octobre 1876;
2°. Que, conformement a cette sentence arbitrale, le Gouvernement de la Republiqe des Etats-Unis Mexicains devra payer au Gouverne- ment des Etats-Unis d'Amerique la somme d'un million quatre cent vingt mille six cent quatre vingt deux Dollars du Mexique et soixante sept cents (1,420,682.67/100 Dollars du Mexique) en monnaie ayant cours legal au Mexique, dans le delai fixe par 1'Article X du Protocole de Washington du 22 mai 1902.
Cette somme d'un million quatre cent vingt mille six cent quatre vingt deux Dollars et soixante sept cents (1,420,682.67/100 Dollars) constituera le versement total des annuites echues et non payees par le Gouvernement de la Republique Mexicaine, savoir de la rente an- nuelle de quarante trots mille cinquante Dollars du Mexique et quatre vingt dix neuf cents (43,050.99/100 Dollars du Mexique) depuis le 2 f 'evrier 1869 jusqu'au 2 f evrier 1902 ;
3°. Le Gouvernement de la Republique des Etats-Unis Mexicains paiera au Gouvernement des Etats-Unis d'Amerique le 2 f evrier 1903, et chaque annee suivante a cette meme date du 2 fevrier, a perpetuite la rente annuelle de quarante trois mille cinquante Dollars du Mexique
432 ORIGINAL TEXTS
et quatre vingt dix neuf cents (43,050.99/100 Dollars du Mexique)
en monnaie ayant cours legal au Mexique.
Fait a La Haye, dans 1'Hotel de la Cour permanente d'Arbitrage,
en triple original, le 14 octobre 1902.
HENNING MATZEN
EDW. FRY
MARTENS
T. M. C. ASSER
A. F. DE SAVORNIN LOHMAN
Agreement for Arbitration, May 22, 1902*
Por cuanto, en virtud de las disposiciones de una Convencion ajus- tada entre las Altas Partes Contratantes arriba mencionadas, con fecha 4 de Julio de 1868, y siguientes convenciones suplementarias de ella, ftte sometida a la Comision Mixta establecida por dicha Convencion una reclamacion presentada por parte y en favor de los prelados de la Iglesia Catolica Romana de California contra la Republica de Mexico, por reditos anuales de cierto fondo llamado el "Fondo Piadoso de las Californias," los cuales reditos se consideraron devengados desde el 2 de Febrero de 1848, fecha de la firma del tratado de Guadalupe Hidalgo, hasta el 1°. de Febrero de 1869, fecha del canje de las ratifi- caciones de la Convencion arriba referida; y
Por cuanto la indicada Comision Mixta, despues de examinar dicha reclamacion, que fue senalada en el libro de registro con el numero 493 e intitulada "Thaddeus Amat Obispo Catolico Romano dc Mon- terrey, por la corporacion unitaria que representa, y Joseph S. Ale- many Obispo Catolico Romano de San Francisco, por la corporacion unitaria que representa, contra la Republica de Mexico" decidio la reclamacion contra la Republica de Mexico, y en favor de dichos recla- mantes, dando un laudo por novecientos cuatro mil setecientos pesos noventa y nueve centavos ($904,700.99) ; los cuales, como se expresa en la exposicion de dicho tribunal, fueron el importe de reditos venci- dos en veintiun anos a razon de cuarenta y tres mil ochenta pesos noventa y nueve centavos ($43,080.99) anuales sobre la ^uma de sete- cientos diez y ocho mil diez y seis pesos cincuenta centavos ($718,- 016.50) y habian de pagarse en oro mexicano; y dicha suma de nove- cientos cuatro mil setecientos pesos noventa y nueve centavos ($904,- 700.99) fue completamente pagada y finiquitada en conformidad con los terminos de dicha Convencion • v
Por cuanto los Estados Unidos de America por los Obispos Cato- licos Romanos arriba nombrados y sus sucesores con el mismo titulo e interes ban reclamado a Mexico despues de dicho laudo los sucesi- vos vencimientos de dichos reditos y han insistido en que la expresada reclamacion fue definitivamente juzgada y su monto fijado en contra de Mexico y a favor de los primitivos reclamantes y de sus sucesores
1t7. S. Statutes at Large, vol. 32, p. 1916.
THE PIOUS FUND CASE 433
con el mismo titulo e interes, conforme a la primera Convencion men- cionada de 1868, en virtud de dicho laudo como res judicata; y ban sostenido ademas que independientemente de tal laudo su reclamacion contra Mexico era justa ; aserciones ambas que ban sido controvertidas e impugnadas por la Republica de Mexico, y las Altas Partes signa- tarias de este Compromise, animadas de un vivo deseo de que la con- troversia asi suscitada sea amigable, satisfactoria y justamente resuelta, ban convenido en someter dicha controversia a la decision de arbitros, quienes se ajustaran en todo lo que no se disponga de otro modo por el presente instrumento, a las prevenciones de la Conven- cion internacional para el arreglo pacifico de controversias interna- cionales comunmente denominada "Convencion de La Haya" y estaran facultados para resolver:
1°. Si dicha reclamacion como consecuencia del laudo anterior esta regida por el principio de res judicata; y
2°. De no estarlo, si es justa la misma reclamacion.
Y para pronunciar un fallo 6 laudo tal que sea adecuado y conve- niente a todas las circunstancias del caso:
Por tanto, se conviene entre los Estados Unidos de America, repre- sentados por John Hay, Secretario de Estado de los Estados Unidos de America, y la Republica de Mexico, representada por Manuel de Azpiroz, Embajador Extraordinario y Plenipotenciario de la Repu- blica de Mexico en los Estados Unidos de America, en lo siguiente:
Las referidas cuestiones seran sometidas al tribunal especial que en seguida se autoriza para examinarlas, determinarlas y fallarlas.
II
El tribunal especial constituido por este instrumento se compondra de cuatro arbitros, debiendo ser dos nombrados por cada una de las altas partes contratantes y un arbitro superior que sera elegido con arreglo a las disposiciones de la Convencion de La Haya. Los arbitros nombrados, como se ha dicho, por cada una de las Altas Partes Con- tratantes seran dados a conocer por la parte que los nombro a la otra parte dentro de sesenta dias que correran desde la fecha de este proto- colo. Ninguno de los arbitros nombrados como se ha dicho sera oriundo 6 ciudadano de las partes contratantes. El laudo podra ser pronunciado por mayoria de votos de dicho tribunal. Todas las va- cantes que ocurran entre los miembros de dicho tribunal por causa de muerte, separacion 6 inbabilidad que provenga de causa anterior al pronunciamiento del laudo seran cubiertas del mismo modo que fue nombrado el miembro cesante, como se dispone en la Convencion de La Haya, y si ocurrieren despues que dicho tribunal se haya instalado podran justificar, a juicio del tribunal, una prorroga del termino senalado para la audiencia 6 resoluci6n, segun sea el caso, con tal que ella no pase de treinta dias.
434 ORIGINAL TEXTS
III
Todas las alegaciones, testimonies, pruebas, informes en derecho y conclusiones 6 laudos de los Comisionados 6 del tercero en discordia, presentados ante la Comision Mixta arriba referida 6 acordados por ella, son de aducirse como pruebas ante el tribunal que ahora se nom- bra, juntamente con toda la correspondencia habida entre los dos paises concemiente a los puntos comprendidos en este arbitramento ; exhibiendose al nuevo tribunal dichos documentos originates 6 copias de ellos debidamente certificados por los Departamentos de Estado respectivos de las Altas Partes Contratantes. Cuando cualquiera de las dos partes cite libros impresos por via de prueba, la que ofrezca tal prueba especificara el volumen, edicion y pagina de la parte que quiera se lea, y proporcionara al tribunal impresos los pasajes que deseare hacer yaler, cuya exactitud sera comprobada con testimonio legal ; y si la obra original no esta ya f ormando parte del archive de la primera Comision Mixta, el libro mismo sera puesto a disposicion de la parte contraria, en los despachos respectivos del Secretario de Estado 6 del Embajador de Mexico en Washington, segun sea el caso, treinta dias antes de la reunion del tribunal que aqui se nombra.
IV
Cada parte podra pedir a la otra que de a conocer cualquier hecho 6 documento considerado como prueba 6 que contenga materia de prueba interesante 6 la parte que la solicita; debiendo ser descrito el docu- mento deseado con suficiente exactitud para su identification ; y se dara la noticia se hara la exhibicion pedida, mediante una relacion del hecho, 6 el deposito de una copia de dicho documento (certificada por quien lo tenga legalmente en guarda si es un documento publico, y autorizada por su poseedor si el documento fuere privado) y a la parte contraria se debera dar la oportunidad de examinar el original en la ciudad de Washington en el Departamento de Estado 6 en el despacho del Embajador de Mexico segun fuere el caso. Si la noticia 6 exhibi- cion deseada se obtuviere demasiado tarde para que pueda ser con- testada diez dias antes que el tribunal aqui establecido abra la auden- cia, en tal caso la contestacion que se de al pedimento, 6 el documento que se produzca, se presentara al tribunal aqui establecido, tan pronto como fuere posible.
Todo testimonio oral que no conste en el archivo del primer arbitra- mento podra rendirse por cualquiera de las partes ante algun juez 6 secretario de juzgado de letras 6 notario publico, de la manera, con las precauciones y bajo las condiciones prescritas para tal caso en las reglas de la Comision Mixta de Mexico y los Estados Unidos de Ame- rica, y adoptadas por dicho tribunal el 10 de Agosto de 1869, en todo lo que scan aplicables. Cuando el testimonio se extienda por escrito, firmado que sea por el testigo y legalizado por el funcionario ante
THE PIOUS FUND CASE 435
quien se haya rendido, debera ser sellado, dirigido al tribunal que aqui se establece, y asi sellado se entregara en deposito en el Despacho de Relaciones exteriores de Mexico 6 en el Departamento de Estado de los Estados Unidos a fin de que sea remitido al tribunal que aqui se establece cuando el mismo se reuna.
VI
Dentro de sesenta dias desde la fecha de este instrumento la parte de los Estados Unidos de America, por medio de su agente 6 abogado, debera preparar y entregar al Departamento de Estado arriba dicho un memorial impreso del origen y monto de la reclamacion, acom- panado de las citas de libros impresos y de aquellas partes de las pruebas 6 piezas del archivo del primer arbitramento, en que quiera fundar su reclamacion, dando copias de los mismos documentos a la Embajada de la Republica Mexicana en Washington para uso del agente 6 abogado de Mexico.
VII
Dentro de cuarenta dias despues de la entrega del memorial a la Embajada Mexicana, el agente 6 abogado de la Republica de Mexico entregara al Departamento de Estado de los Estados Unidos de Ame- rica, de la misma manera y con iguales referencias, un memorial de sus alegaciones y razones de oposicion a la reclamacion dicha.
VIII
Las prevenciones de los parrafos VI y VII no impediran a los agentes 6 abogados de las partes contratantes reforzar oralmente 6 por escrito sus argumentos citando cualesquiera documentos proba- torios u otras pruebas que consideren utiles y les haya sido dado cono- cer y examinar en un periodo subsiguiente a los terminos senalados para el traslado del memorial y la contestation.
IX
La primera reunion del tribunal arbitral arriba nombrado se verifi- cara con objeto de elejir un arbitro superior el 1°. de Septiembre de 1902 en la Haya en el local que al efecto destine la Oficina Interna- cional de la Haya constituida en virtud de la convencion de la Haya, antes ref erida y para dar principio a las audiencias del tribunal se de- signa el 15 de Septiembre de 1902, 6 si en esa fecha no estuviere ya electo el arbitro superior, las audiencias comenzaran tan pronto como sea posible y no despues del 15 de Octubre de 1902, en cuyo tiempo y lugar 6 en otras fechas que el tribunal disponga (y en Bruselas, si el tribunal determinare no tener sus sesiones en la Haya) explica- ciones y alegatos, que se presenten segun lo determine el tribunal, y el caso le quedara sometido. Esta sumision con todos los alegatos, relation de hechos y presentation de documentos estara concluida den- tro de los treinta dias siguientes al termino senalado para las audien- cias del tribunal (a no ser que este acuerde una prorroga que no ex-
436 ORIGINAL TEXTS
cedera de treinta dias) y el laudo se pronunciara dentro de treinta dias despues de cerradas las audiencias. Copias certificadas del laudo se daran a los agentes 6 abogados de las respectivas partes y se en- viaran al Embajador de Mexico en Washington y al Secretario de Estado de los Estados Unidos, asi como al Ministro de Negocios Extranjeros de los Paises Bajos para su archivo.
Si el laudo del tribunal f uere adverso a la Republica Mexicana, sus conclusiones expresaran la suma, la especie de moneda en que ha de ser pagada, y la suma sera la que se considere justa conforme a lo probado y alegado. La suma, si alguna fuere definitivamente fallada, sera pagada al Secretario de Estado de los Estados Unidos de Ame- rica dentro de ocho meses desde la fecha del laudo.
XI
Los agentes de abogados de las respectivas partes ppdran convenir en la admision de cualesquiera hechos, y tal convenio debidamente firmado sera admitido como prueba de los mismos hechos.
XII
Cada una de las partes contratantes pagara sus propios gastos y la mitad de los comunes del arbitraje, incluyendo la remuneracion de los arbitros ; mas estas costas no constituiran parte de la suma fallada.
XIII
Habra lugar a revision conforme a lo prevenido en el articulo 55 de la Convencion de La Haya, si fuere promovida dentro de ocho dias desde la notificacion del laudo. Las pruebas admisibles en este recurso se presentaran dentro de diez dias desde la fecha en que se concediere (el cual solamente se otorgara, si asi se acordare, dentro de cinco dias despues de su promocion) y las pruebas de la parte con- tra ria dentro de los diez dias siguientes a no ser que se conceda mayor plazo por el tribunal. Los alegatos se produciran dentro de diez dias despues de la presentacion de todas las pruebas, y el fallo 6 laudo se dara dentro de los diez dias siguientes. Todas las disposiciones apli- cables al fallo 6 laudo recurrido se aplicaran en lo posible el fallo 6 laudo de revision, bien entendido que en los procedimientos de este recurso se empleara la lengua francesa.
XIV
El laudo ultimo dado conforme a este compromiso sera definitivo y concluyente en todos los puntos propuestos a la consideracion del tribunal.
Hecho por duplicado en ingles y en espanol en Washington hoy dia 22 de Mayo, A. D. 1902.
JOHN HAY [SEAL] M. DE AZPIROZ [SEAL]
THE PIOUS FUND CASE 437
Convention of July 4, 1868, between the United States of America and the Republic of Mexico for the Adjustment of Claims1
Considerando que es conveniente mantener y ensanchar los senti- mientos amistosos entre la republica Mexicana y los Estados Unidos, y afianzar asi el sistema y principles de gobierno republicano en el continente Americano ; y considerando que con posterioridad a la celebracion del tratado de Guadalupe Hidalgo, de 2 de Febrero de 1848, ciudadanos de la republica Mexicana ban hecho reclamaciones y presentado quejas, con motivo de perjuicios sufridos en sus personas 6 sus propiedades, por autoridades de los Estados Unidos, y reclama- ciones y quejas semej antes se ban hecho y presentado con motivo de perjuicios sufridos por ciudadanos de los Estados Unidos, en sus per- sonas 6 sus propiedades por autoridades de la republica Mexicana, [el Presidente de la republica Mexicana] y el Presidente de los Esta- dos Unidos de America han determinado concluir una convencion para el arreglo de dichas reclamaciones y quejas, y han nombrados sus plenipotenciarios ; el Presidente de la republica Mexicana, a Matias Romero, acreditado como Enviado Extraordinario y Ministro plenipotenciario de la republica Mexicana en los Estados Unidos; y el Presidente de los Estados Unidos, a William H. Seward, Secretario de Estado, quienes despues de haberse mostrado sus respectivos plenos poderes y encontradolos en buena y debida forma, han convenido en los Articulos siguientes:
ARTICULO I
Todas las reclamaciones hechas por corporaciones, companias 6 in- dividuos particulares, ciudadanos de la republica Mexicana, proce- dentes de perjuicios sufridos en sus personas 6 en sus propiedades, por auloridades de los Estados Unidos, y todas las reclamaciones hechas por corporaciones, companias 6 individuos particulares, ciudadanos de los Estados Unidos, procedentes de perjuicios sufridos en sus per- sonas 6 en sus propiedades, por autoridades de la republica Mexicana, que hayan sido presentadas a cualquiera de los dos gobiernos, solici- tando su interposicion para con el otro, con posterioridad a la celebra- cion del tratado de Guadalupe Hidalgo entre la republica Mexicana y los Estados Unidos, de 2 de Febrero de 1848, y que aim permanecen pendientes, de la misma manera que cualesquiera otras reclamaciones que se presentaren dentro del tiempo que mas adelante se especificara, se referiran a dos comisionados, uno de los cuales sera nombrado por el Presidente de la republica Mexicana y el otro por el Presidente dc los Estados Unidos, con el consejo y aprobacion del Senado. En caso de muerte, ausencia 6 incapacidad de alguno de los comisiona- dos, 6 en caso de que alguno de los comisionados cese de funcionar como tal, 6 suspenda el ejercicio de sus funciones, el Presidente de la republica Mexicana 6 el Presidente de los Estados Unidos respectiva- mente, nombraran desde luego otra persona que haga de comisionado en lugar del que originalmente fue nombrado.
*C7. S. Statutes at Large, vol. 15, p. 679.
438 ORIGINAL TEXTS
Los comisionados nombrados de esta manera, se reuniran en Wash- ington dentro de seis meses, despues de cangeadas las ratificaciones de esta convencion, y antes de desempenar sus funciones, haran y suscribiran una declaracion solemne de que examinaran y decidiran imparcial y cuidadosamente, segun su mejor saber, y con forme con el derecho publico, la justicia y equidad, y sin temor 6 afeccion a su respectivo pais, sobre todas las reclamaciones antes especificadas, que se les sometan por los gobiernos de la republica Mexicana y de los Estados Unidos respectivamente, y dicha declaracion se asentara en la acta de sus procedimientos.
Los comisionados procederan entonces a nombrar una tercera per- sona que hara de arbitro en el caso 6 casos en que difieran de opinion.
Si no pudieren convenir en el nombre de esta tercera persona, cada uno de ellos nombrara una persona, y en todos y cada uno de los casos en que los comisionados difieran de opinion respecto de la deci- sion que deban dar, se determinant por suerte quien de las dos per- sonas asi nombradas hara de arbitro en ese caso particular. La per- sona 6 personas que se eligieren de esa manera, para ser arbitros, haran y suscribaran, antes de obrar como tales, en cualquier caso, una declaracion solemne en una forma seme j ante a la que debera haber sido ya hecha y suscrita por los comisionados, la cual se asentara tambien en la acta de los procedimientos. En caso de muerte, ausen- cia 6 incapacidad de la persona 6 personas nombradas arbitros, 6 en caso de que suspendan el ejercicio de sus funciones, se rehusen a desempenarlas 6 cesen en ellas, otra persona sera nombrado arbitro de la manera que queda dicha, en lugar de la persona originalmente nombrada, y hara y suscribira la declaracion antes mencionada.
ARTfcULO II
En seguida procederan juntamente los comisionados a la investiga- cion y decision de las reclamaciones que se les presenten, en el orden y de la manera que de comun acuerdo creyeren conveniente, pero recibiendo solamente las pruebas 6 informes que se les ministren por los respectivos gobiernos 6 en su nombre. Tendran obligacion de recibir y leer todas las manifestaciones 6 documentos escritos que se les presenten por sus gobiernos respectivos, 6 en su nombre, en apoyo 6 respuesta a cualquiera reclamacion, y de oir, si se les pidiere, a una persona por cada lado, en nombre de cada gobierno, en todas y cada una de las reclamaciones separadamente. Si dejaren de convenir sobre alguna reclamacion particular, llamaran en su ausilio al arbitro que hayan nombrado de comun acuerdo, 6 a quien la suerte haya designado segun fuere el caso, y el arbitro, despues de haber examinado las pruebas producidas en favor y en contra de la reclamacion, y despues de haber oido, si se le pidiere, a una persona por cada lado, como queda dicho, y consultado con los comisionados, decidira sobre ella finalmente y sin apelacion. La decision de los comisionados y del arbitro se dara en cada reclamacion por escrito, especificara si la suma que se concediere se pagara en oro 6 en moneda corriente de
THE PIOUS FUND CASE 439
los Estados Unidos, y sera firmada por ellos respectivamente. Cada gobierno podra nombrar una persona que concurra a la comision en nombre del gobierno respectivo, como agente ; que presente 6 defienda las reclamaciones en nombre del mismo gobierno, y que responda a las reclamaciones hechas contra el, y que le represente en general en todos los negocios que tengan relacion con la investigacion y decision de reclamaciones.
El Presidente de la Republica Mexicana y el Presidenle de los Esta- dos Unidos de America se comprometen solemne y sinceramente en esta convencion, a considerar la decision de los comisionados de acuerdo, 6 del arbitro, segun fuere el caso, como absolutamente final y definitiva, respecto de cada una de las reclamaciones falladas por los comisionados 6 el arbitro respectivamente, y a dar entero cumpli- miento a tales decisiones sin objecion, evasion ni dilacion ninguno. Se conviene que ninguna reclamacion que emane de acontecimientos de fecha anterior al 2 de Febrero de 1848, se admetera con arreglo a esta convencion.
ARTICULO III
Todas las reclamaciones se presentaran a los comisionados dentro de ocho meses contados desde el dia de su primera reunion, a no ser en los casos en que se manifieste que haya habido razones para dila- tarlas, siendo estas satisfactorias para los comisionados 6 para el arbitro, si los comisionados no se convinieren, y en ese y otros casos semej antes el periodo para la presentacion de las reclamaciones podra estenderse por un plazo que no cxceda de tres meses.
Los comisionados tendran la obligation de examinar y decidir todas las reclamaciones dentro de dos afios y seis meses, contados desde el dia re su primera reunion. Los comisionados de comun acuerdo 6 el arbitro, si ellos difirieren podran decidir en cada caso, si una reclama- cion ha sido 6 no debidamente hecha, comunicada y sometida a la comision, ya sea en su totalidad 6 en parte y cual sea esta, con arreglo al verdadero espiritu y a la letra de esta convencion.
ARTICULO IV
Cuando los comisionados y el arbitro hayan decidido todos los casos que les hayan sido debidamente sometidos, la suma total fallada en todos los casos decididos en favor de los ciudadanos de una parte, se deducira de la suma total fallada en favor de los ciudadanos de la otra parte, y la diferencia hasta la cantidad de trescientos mil pesos en oro, 6 su equivalente, se pagara en la ciudad de Mexico 6 en la ciudad de Washington, al gobierno en favor de cuyos ciudadanos se haya fallado la mayor cantidad, sin interes, ni otra deduction que la especificada en el Articulo VI de esta convencion. El resto de dicha diferencia se pagara en abonos anuales que no escedan de trescientos mil pesos en oro 6 su equivalente, hasta que se haya pagado el total de la diferencia.
440 ORIGINAL, TEXTS
ARTfCULO V
Las altas partes contratantes convienen en considerar el resultado de los procedimientos de esta comision, como arreglo complete, per- fecto y final, de toda reclamacion contra cualquiera gobierno, que proceda de acontecimientos de fecha anterior al canje de las ratifica- ciones de la presente convencion; y se comprometen ademas a que toda reclamacion, ya sea que se haya presentado 6 no a la referida comision, sera considerada y tratada, concluidos los procedimientos de dicha comision, como finalmente arreglada, desechada y para siem- pre inadmisible.
ARTICULO VI
Los comisionados y el arbitro llevaran una relation fiel y actas exac- tas de sus procedimientos con especificacion de las fechas; con este objeto nombraran dos secretaries versados en las lenguas de ambos paises, para que les ayuden en el arreglo de los asuntos de la comision. Cada gobierno pagara a su comisionado un sueldo que no exceda de cuatro mil quinientos pesos al ano, en moneda corriente de los Estados Unidos, cuya cantidad sera la misma para ambos gobiernos. La com- pensation que haya de pagarse al arbitro se determinara por consen- timiento mutuo, al terminarse la comision; pero podran hacerse por cada gobierno adelantos necesarios y razonables en virtud de la reco- mendacion de los dos comisionados. £1 sueldo de los secretarios no excedera de la suma de dos mil quinientos pesos al ano, en moneda corriente de los Estados Unidos. Los gastos todos de la comision, incluyendo los contingentes, se pagaran con una reduction propor- tional de la cantidad total fallada por los comisionados, siempre que tal deduction no exceda del cinco por ciento de las cantidades falladas. Si hubiere algun deficiente, lo cubriran ambos gobiernos por mitad.
ARTfCULO VII
La presente convencion sera ratificada por el Presidente de la repu- blica Mexicana, con aprobacion del Congreso de la misma, y por el Presidente de los Estados Unidos, con el consejo y aprobacion del Senado de los mismos, y las ratificaciones se cangearan en Washing- ton dentro de nueve meses contados desde la fecha de la convencion, 6 antes, si fuere posible.
En fe de lo cual, los respectivos plenipotentiaries la hemos firmado y sellado con nuestros sellos respectivos.
Hecho en Washington el dia cuatro de Julio, del ano del Senor mil ochocientos sesenta y ocho.
M. ROMERO [L. S.]
WILLIAM H. SEWARD [L. S.]
THE VENEZUELAN PREFERENTIAL CASE
Aivard of the Tribunal, February 22, 1904*
Le Tribunal d* Arbitrage, constitu6 en vertu des Protocoles, signes a Washington, le 7 mai 1903, entre 1'Allemagne, la Grande-Bretagne et 1'Italie d'une part, et le Venezuela d'autre part ;
Considerant que d'autres Protocoles ont etc signes a cet effet entre la Belgique, 1'Espagne, les Etats-Unis d'Annerique, la Francte, le Mexique, les Pays-Bas, la Suede et Norvege d'une part, et le Venezuela d'autre part ;
Considerant que tous ces Actes constatent 1 'accord le toutes les Parties contractantes relativement au reglement des reclamations contre le Gouvernement Venezu61ien ;
Considerant que diverses autres questions, resultant de Faction des Gouvernements d'Allemagne, de Grande-Bretagne et d'ltalie con- cernant le reglement des reclamations, n'etaient pas susceptibles d'une solution par la voie diplomatique ordinaire ;
Considerant que les Puissances interessees ont decide de resoudre ces questions en les soumettant a 1'arbitrage, conformement aux dispo- sitions de la Convention, signee a La Haye le 29 juillet 1899, pour le reglement pacifique des conflits internationaux ;
Considerant qu'en vertu de T Article III des Protocoles de Washing- ton du 7 mai 1903, Sa Majeste 1'Empereur de Russie a ete invite par toutes les Puissances interessees a designer parmi les membres de la Cour Permanente d' Arbitrage de La Haye trois Arbitres, qui for- meront le Tribunal d'Arbitrage charge de resoudre et de regler les questions qui lui seront soumises en vertu des Protocoles susmen- tionnes ;
Attendu qu'aticun des Arbitres ainsi designes ne pourrait etre citoyen ou sujet de Tune quelconque des Puissances signataires ou creancieres, et que le Tribunal devrait se reunir a La Haye le ler septembre 1903 et rendre sa sentence dans le delai de six mois ;
Sa Majeste 1'Empereur de Russie, en se rendant au desir de toutes les Puissances signataires des Protocoles susmentionnes de Washington du 7 mai 1903, a daigne nommer comme Arbitres les membres suivants de la Cour Permanente d'Arbitrage a La Haye:
Son Excellence Monsieur N. V. Mourawieff, Secretaire d'Etat de Sa Majeste TEmpereur de Russie, Conseiller Priv6 Actuel, Ministre de la Justice et Procureur-General de 1'Empire de Russie ;
Monsieur H. Lammasch, Professeur de Droit Penal et de Droit International a 1'Universite de Vienne, Membre de la Chambre des Seigneurs du Parlement autrichien, et
Son Excellence Monsieur F. De Martens, Docteur en Droit, Con-
3 Official report p. 129.
442 ORIGINAL TEXTS
seiller Prive, Membre Permanent du Conseil du Ministere des Affaires Etrangeres de Russie, Membre de FInstitut de France ;
Attendu que par des circonstances imprevues le Tribunal d'Arbitrage ne put etre constitue definitivement que le ler octobre 1903, les Arbitres, dans leur premiere reunion du meme jour, en procedant conformement a 1' Article XXXIV de la Convention du 29 juillet 1899, a la nomina- tion du President du Tribunal, ont elu comme tel Son Excellence Mon- sier Mourawieff, Ministre de la Justice ;
Et attendu qu'en vertu des Protocoles de Washington du 7 mai 1903, les susmentionnes Arbitres, reunis en Tribunal d'Arbitrage, legalement constitue, devaient decider, conformement a 1'Article I des Protocoles de Washington du 7 mai 1903, ce qui suit :
"La question de savoir, si rAllemagne, la Grande-Bretagne et 1'Italie ont, ou n'ont pas, droit a un traitement preferentiel ou separe pour le paiement de leurs reclamations contre le Venezuela et la trancher sans appel;
Le Venezuela ayant consenti a mettre de cote 30 pour cent de revenu des douanes de La Guayra et de Puerto Cabello pour le paiement des reclamations de toutes les nations contre le Venezuela, le Tribunal de La Haye decidera comment ces recettes seront reparties entre les Puissances qui ont effectue le blocus d'une part, et les autres Puis- sances creancieres d'autre part, et sa decision sera sans appel.
Si un traitement preferentiel ou separe n'est pas accorde aux Puis- sances bloquantes, le Tribunal decidera comment les susdits revenus seront repartis entre toutes les Puissances creancieres; et les Parties conviennent que, dans ce cas, le Tribunal prendra en consideration, par rapport aux paiements a effectuer au moyen de 30 pour cent tout droit de preference ou de gage sur les revenus dont serait titulaire Tune quelconque des Puissances creancieres, et le Tribunal tranchera en consequence la question de repartition de fagon qu'aucune Puis- sance ne jouisse d'un traitement preferentiel, et sa decision sera sans appel."
Attendu que les susmentionnes Arbitres, ayant examine avec im- partialite et soin tous les documents et actes, presented au Tribunal d'Arbitrage par les Agents des Puissances interessees dans ce litige, et ayant entendu avec la plus grande attention les plaidoiries orales, prononcees devant le Tribunal, par les Agents et Conseils der Parties en litige ;
Considerant que le Tribunal, en examinant le present litige devait se regler d'apres les principes du droit international et les notions de la justice ;
Considerant que les differents Protocoles signes a Washington depuis le 13 fevrier 1903 et particulierement les Protocoles du 7 mai 1903, dont la force obligatoire ne saurait etre mise en doute, forment la base legale de la sentence arbitrale ;
Considerant que le Tribunal d'Arbitrage n'est nullement competent ni pour contester la juri diet ion des commissions mixtes arbitrates, dtablies a Caracas, ni pour juger leur action ;
THE VENEZUELAN PREFERENTIAL CASE 443
Considerant que le Tribunal ne se reconnait absolument aucune competence pour porter un jugement sur le caractere ou la nature des operations militaires entreprises par rAllemagne, la Grande-Bretagne et Tltalie contre le Venezuela;
Considerant que le Tribunal d'Arbitrage n'etait non plus appele a decider si les trois Puissances bloquantes avaient epuise dans leur conflit avec le Venezuela tous les moyens pacifiques, afin de prevenir 1'emploi de la force ;
Qu'il peut seulement constater le fait que depuis 1901 le Gouverne- ment du Venezuela refusait categoriquement de soumettre son conflit avec rAllemagne et la Grande-Bretagne a Parbitrage, propose a plusieurs reprises et tout specialement par la Note du Gouvernement Allemand du 16 juillet 1901 ;
Considerant qu'apres la guerre entre rAllemagne, la Grande- Bretagne et FItalie d'une part, et le Venezuela d'autre part, aucun traite f ormel de paix no f ut conclu entre les Puissances belligerantes ;
Considerant que les Protocoles, signes a Washington le 13 fevrier 1903, n'avaient point regie toutes les questions en litige entre les Parties belligerantes, en laissant particulierement ouverte la question de la repartition des recettes des douanes de La Guayra et de Puerto Cabello ;
Considerant que les Puissances belligerantes, en soumettant la ques- tion du traitement preferentiel par rapport a ces recettes au jugement du Tribunal d'Arbitrage, sont tombees d'accord que la sentence ar- bitrale doit servir a completer cette lacune et a assurer le retablissement definitif de la paix entre elles ;
Considerant d'une part que les operations de guerre des trois grandes Puissances europeenes contre le Venezuela ont cesse avant qu'elles eussent regu satisfaction sur toutes leurs reclamations, et d'autre part, que la question du traitement preferentiel a etc soumise a 1'arbitrage, le Tribunal doit reconnaitre dans ces faits un temoignage precieux en faveur du grand principe de 1'arbitrage dans toutes les phases des con- flits internationaux ;
Considerant que les Puissances bloquantes, en admettant 1'adhesion aux stipulations des Protocoles du 13 fevrier 1903 des autres Puis- sances ayant des reclamations a 1'egard du Venezuela, ne pouvaient evidemment avoir 1'intention de renoncer ni a leurs droits acquis, ni a leur position privilegiee de fait ;
Considerant que le Gouvernement du Venezuela dans les Protocoles du 13 fevrier (article I) reconnait lui-meme "en principe le bien-fondt des reclamations" presentees contre lui par les Gouvernements d'Allemagne, de Grande-Bretagne et d'ltalie;
Tandis que dans les Protocoles, signes entre le Venezuela et les Puissances dites neutres ou pacifiques, le bien-fonde des reclamations de ces dernieres n'a point etc reconnu en principe ;
Considerant que le Gouvernement du Venezuela jusqu'a la fin de Janvier 1903 ne protestait nullement contre la prevention des Puissances bloquantes d'exiger des gages speciaux pour le reglement de leurs reclamations ;
444 ORIGINAL TEXTS
Considerant que le Venezuela lui-meme faisait tou jours durant les negotiations diplomatiques une distinction formelle entre "les Puis- sances alliee" et "les Puissances neutres ou pacifiques" ;
Considerant que les Puissances neutres, qui reclament actuellement devant le Tribunal d'Arbitrage Tegalite dans la repartition de 30 pour cent des recettes des douanes de La Guayra et de Puerto Cabello, n'ont pas proteste contre la pretention des Puissances bloquantes a un traitement preferentiel, ni au moment de la cessation de la guerre contre le Venezuela, ni immediatement apres la signature des Proto- coles du 13 fevrier 1903 ;
Considerant qu'il resulte des negociations diplomatiques, ayant abouti a la signature des Protocoles du 13 fevrier et 7 mai 1903, que les Gouvernements Allemand et Britannique insistaient constamment sjir ce qu'il leur soit donne des garanties pour "a sufficient and punctual dis- charge of the obligations" (Memorandum Britannique du 23 decembre 1902, communique au Gouvernement des Etats-Unis d'Amerique) ;
Considerant que le Plenipotentiaire du Gouvernement du Venezuela accepta ces reserves de la part des Puissances alliees sans la moindre protestation ;
Considerant que le Gouvernement du Venezuela ne s'engagea, qu'a Tegard des Puissances alliees, a offrir des garanties speciales pour 1'accomplissement des engagements pris par lui ;
Considerant que la bonne foi qui doit regir les relations inter- nationales impose le devoir de constater que les mots "all claims" em- ployes par le Representant du Gouvernement du Venezuela dans ses pourparlers avec les Representants des Puissances alliees (Statement left in the hands of Sir Michael H. Herbert by Mr. H. Bowen of 23 January, 1903), ne pouvaient viser que les reclamations de ces dernieres et ne pouvaient se rapporter qu'a celles-ci ;
Considerant que les Puissances neutres, n'ayant pris aucune part aux operations de guerre contre le Venezuela, pourraient sous quelque rapport profiter des circonstances creees par ces operations, sans toute- fais acquerir des droits nouveaux;
Considerant que les droits acquis des Puissances neutres ou pacifiques a 1'egard du Venezuela restent a 1'avenir absolument intacts et garantis par des arrangements internationaux respectif s ;
Considerant qu'en vertu de 1' Article V des Protocoles du 7 mai 1903, signes a Washington, le Tribunal "decidera aussi suivant la disposition generale, formulae par 1'Article LVII de la Convention international du 29 juillet 1899, comment, quand et par qui les frais du present ar- bitrage seront payes" ;
Par ces motifs:
Le Tribunal d'Arbitrage decide et prononce a Tunanimite ce qui suit:
1°. L'Allemagne, la Grande-Bretagne et Tltalie ont droit a un traite- ment preferentiel pour le paiement de leurs reclamations contre le Venezuela;
2°. Le Venezuela ayant consenti a mettre de cote 30 pour cent du
THE VENEZUELAN PREFERENTIAL CASE 445
revenu des douanes de La Guayra et de Puerto Cabello pour le paiement des reclamations de toutes les nations centre le Venezuela, les trois Puissances susmentionees ont un droit de preference au paiement de leurs reclamations au moyen de ces 30 pour cent des recettes des deux ports venezueliens sus-indiques ;
3°. Chaque Partie en litige supporte ses propres frais et une part egale des frais du Tribunal.
Le Gouvernement des Etats-Unis d'Amerique est charge de veiller a Texecution de cette derniere disposition dans le delai de trois mois.
Fait a la Haye, dans 1'Hotel de la Cour Permanente d* Arbitrage, le 22 fevrier 1904.
(Signe) N. MOURAWIEFF ( " ) H. LAMMASCH ( " ) MARTENS
Agreement for Arbitration, May f,
Von dem Kaiserlich Deutschen Gesandten Herrn Freiherrn Speck von Sternburg als Bevollmachtigten der Kaiserlich Deutschen Regienmg und dem Gesandten der Vereinigten Staaten von Amerika Herrn Herbert W. Bowen als Bevollmachtigten der Venezolanischen Regienmg ist zur Ausfuhrung der Artikel 3 und 4 des deutsch- venezolanischen Protokolls vom 13. Februar 1903 nachstehendes Abkommen uber die zur Feststellung der deutschen Reklamationen berufene gemischte Kommission unterzeichnet worden :
ARTIKEL I
Die von der Kaiserlich Deutschen und der Venezolanischen Regierung zu ernennenden Mitglieder der gemischten Kommission treten am 1. Juni 1903 in Caracas zusammen. Der von dem Prasi- denten der Vereinigten Staaten von Amerika zu ernennende Obmann tritt sobald als moglich, spatestens aber am 1. Juni 1903 in die Kom- mission ein.
Der Obmann ist zu den Verhandlungen und Entscheidungen zuzuziehen, sobald das deutsche und das venezolanische Mitglied -sich uber eine Frage nicht einigen konnen oder es sonst fur angezeigt erachten. Bei Zuziehung des Obmanns fiihrt dieser den Vorsitz.
Wenn nach dem Zusammentritte der Kommission der Obmann oder eines der beiden anderen Mitglieder in Wegfall kommt, so soil dessen Nachfolger sofort in derselben Weise wie das weggefallene Mitglied ernannt werden.
Das deutsche und das venezolanische Mitglied haben zu ihrer Un- terstiitzung bei den Kommissionsarbeiten je einen der deutschen und der spanischen Sprache machtigen Sekretar zu ernennen.
1Official records of the Imperial German Embassy at Washington, D. C.
446 ORIGINAL TEXTS
ARTIKEL II
Vor Beginn ihrer Thatigkeit sollen der Obmann und die beiden anderen Mitglieder in feierlicher Weise einen Eid oder eine eides- stattliche Versicherung dahin ableisten, dass sie die ihnen unter- breiteten Reklamationen sorgfaltig priifen und unparteiisch nach den Grundsatzen der Gerechtigkeit sowie nach den Bestimmungen des Protokolls vom 13. Februar 1903 und des vorliegenden Abkommens entscheiden werden. Die Ableistung des Eides oder der eidesstatt- lichen Versicherung ist durch die Protokolle der Kommission fest- zustellen.
Die Entscheidungen der Kommission iiber die Reklamationen sollen auf der Grundlage vollkommener Billigkeit sowie ohne Riicksicht auf Einwendungen technischer Art oder auf die Bestimmungen der Landesgesetzgebung erfolgen. Sie sind schriftlich in deutscher und spanischer Sprache abzufassen. Die zuerkannten Entschadigungsbe- trage mussen angegeben werden als zahlbar in deutschem Golde oder dem Gegenwert in Silber, wie sich solcher zur Zeit der effektiven Zahlung in Caracas stellen wird.
ARTIKEL III
Die Reklamationen sind bei der Kommission von dem Kaiserlich Deutschen Gesandten in Caracas bis zum 1. Juli 1903 anzumelden. Diese Frist kann von der Kommission in geeigneten Fallen angemessen verlang-ert werden. Die Kommission hat iiber die einzelnen Reklama- tionen binnen sechs Monaten nach deren Anmeldung und so fern das deutsche und das venezolanische Mitglied sich nicht einigen, binnen sechs Monaten nach Zuziehung des Obmanns zu entscheiden.
Die Kommission ist verpflichtet, vor der Entscheidung das ihr von dem Kaiserlich Deutschen Gesandten in Caracas und der Venezo- lanischen Regierung vorgelegte Beweismaterial sowie miindliche oder schriftliche Ausfuhrungen etwaiger Bevollmachtigten des Gesandten oder der Regierung entgegenzunehmen und einer sorgfaltigen Prufung zu unterziehen.
t)ber die Verhandlungen der Kommission haben die in Artikel 1 Absatz 4 bezeichneten Sekretare genaue Protokolle in zwei gleichlau- tenden Atisfertigungen zu fuhren, die von ihnen und den an der Verhandlung beteiligten Mitgliedern der Kommission zu unter- zeichnen sind. Nach Beendigung der Kommissionsarbeiten ist je eine Ausfertigung dieser Protokolle der Kaiserlich Deutschen und der Venezolanischen Regierung zur Verfiigung zu stellen.
ARTIKEL IV
Soweit nicht die vorstehenden Artikel besondere Bestimmungen enthalten, kann die Kommission selbst das Verfahren in der ihr geeignet scheinenden Weise regeln. Insbesondere ist sie befugt, selbst die Erklarungen der Reklamanten oder ibrer etwaigen Bevoll- machtigten entgegenzunehmen und die erforderlichen Beweise zu erheben.
THE VENEZUELAN PREFERENTIAL CASE 447
ARTIKEL V
Der Obmann bezieht fur seine Miihewaltung und Auslagen cine angemessene Entschadigung, die ebenso wie etwaige gemeinsame Kosten der Kommission von der Kaiserlich Deutschen und der Venezolanischen Regierung zu gleichem Anteile getragen wird.
Die Entschadigungen, die den beiden anderen Mitgliedern und den Sekretaren der Kommission zu gewahren sind, werden von der Regierung getragen, von deren Seite diese Personen bestellt sind. Ebenso tragt jede Regierung die ihr sonsst etwa erwachsenden eigenen Kosten.
So geschehen in doppelter Ausfertigung in deutscher und englischer Sprache zu Washington am siebten Mai. Eintausend neunhundert und drei.
(L. S.) (gez.) STERNBURG
(L. S.) (gez.) HERBERT W. BOWEN
Protocol of February 13, /poj, between Germany and Venezuela for the Adjustment of Claims1
Protokoll Zwischen dem Kaiserlich Deutschen Ausserordentlichen Gesandten und bevollmachtigten Minister Herrn Freiherrn Speck von Sternburg als Bevollmachtigten der Kaiserlich Deutschen Regierung und dem Gesandten der Vereinigten Staaten von Amerika Herrn Bowen als Bevollmachtigten der Venezolanischen Regierung ist zur Beilegung- der zwischen Deutschland und Venezuela entstan- denen Streitigkeiten nachstehendes Protokoll abgeschlossen worden:
ARTIKEL I
Die Venezolanische Regierung erkennt im Prinzip die von der Kaiserlich Deutschen Regierung erhobenen Reklamationen deutscher Untertanen als berechtigt an.
ARTIKEL II
Die deutschen Reklamationen aus den Venezolanischen Biirger- kriegen von 1898 bis 1900 belaufen sich auf 1,718,815.67 Bolivares. Die Venezolanische Regierung verpflichtet sich von diesem Betrag Pf. Sterling 5,500 = 137,500 Bolivares (Fiinftausend fiinfhundert Pfund Sterling = Einhundert sieben und dreissig tausend fiinfhundert Boli- vares) so fort bar zu bezahlen und zur Tilgung des Restes fiinf am 15 Marz, 15 April, 15 Mai, 15 Juni und 15 Juli 1903 an den Kaiserlich Deutschen Gesandten in Caracas zahlbare Wechsel iiber entsprechende Teilbetrage einzulosen, die Herr Bowen sofort ausstellen und Herrn Freiherrn von Sternburg iibergeben wird. Sollte die Venezolanische
1Official records of the Imperial German Embassy at Washington, D. C.
448 ORIGINAL TEXTS
Regierung diese Wechsel nicht einlosen, so soil die Zahlung aus den Zolleinkunften von La Guaira und Puerto Cabello erfolgen, und soil die Zollverwaltung in den beiden Hafen bis zur vollstandigen Tilgung der erwahnten Schulden belgischen Zollbeamten iibertragen werden.
ARTIKEL III
Die in den Artikeln II und VI nicht erwahnten deutschen Reklama- tionen, insbesondere die Reklamationen, welche aus dem gegenwartigen venezolanischen Biirgerkriege herriihren, ferner die Anspriiche der Deutschen Grossen Venezuela Eisenbahn-Gesellschaft gegen die Venezolanische Regierung wegen Beforderung von Personen und Giitern sowie die aus dem Bau eines Schlachthauses in Caracas entstan- denen Forderungen en des Ingenieurs Karl Henckel in Hamburg und der Aktiengesellschaft fur Beton-und Monierban in Berlin werden einer gemischten Kommission iiberwiesen.
Diese Kommission hat sowohl iiber materielle Berechtigung der einzelnen Forderungen wie iiber deren Hohe zu entscheiden. Bei den Reklamationen wegen widerrechtlicher Beschadigung oder Wegnahme von Eigentum erkennt iiberdies die Venezolanische Regierung ihre Haftpflicht im Prinzip an, dergestalt, dass die Kommission nicht iiber die Frage der Haftpflicht, sondern lediglich iiber die Widerrechtlich- keit der Beschadigung oder Wegnahme sowie iiber die Hohe der Entschadigung zu befinden hat.
ARTIKEL IV
Die im Artikel III erwahnte gemischte Kommission hat ihren Sitz in Caracas. Sie setzt sich zusammen aus je einem von der Kaiserlich Deutschen und der Venezolanischen Regierung zu ernennenden Mit- glied. Die Ernennung hat bis zum 1, Mai 1903 zu erfolgen. Soweit sich die beiden Mitglieder iiber die erhobenen Anspriiche einigen, ist ihre Entscheidung als entgiiltig anzusehen, soweit cine Einigung unter ihnen nicht zu stande kommt, ist zur Entscheidung ein Obmann zuzuziehen, der von dem Prasidenten der Vereinigten Staaten von Amerika ernannt wird.
ARTIKEL V
Zur Befriedigung der im Artikel III bezeichneten Reklamationen sowie der gleichartigen Forderungen anderer Machte wird die Vene- zolanische Regierung vom 1 Marz 1903, ab monatlich 30% der Zolleinkunfte von La Guaira und Puerto Cabello unter Ausschluss jeder anderen Verfugung dem Vertreter der Bank von England in Caracas iiberweisen. Sollte die Venezolanische Regierung dieser Verpflichtung nicht nachkommen, so soil die Zollverwaltung in den beiden Hafen bis zur vollstandigen Befriedigung der vorstehend erwahnten Forderungen belgischen Zollbeamten tibertragen werden.
Alle Streitfragen in Ansehung der Verteilung der im Absatz 1 bezeichneten Zolleinkiinfte sowie in Ansehung des Rechts Deutsch- lands, Gross-Britanniens und Italiens auf gesonderte Befriedigung ihrer
THE VENEZUELAN PREFERENTIAL CASE 449
Reklatnationen sollen in Ermangelung eines anderweitigen Abkommens durch den standigen Schiedshof im Haag entschieden warden. An dem Schiedsverfahren konnen sich alle anderen interessierten Staaten den genannten drei Machten gegeniiber als Partei beteiligen.
ARTIKEL VI
Die Venezolanische Regierung verpflichtet sich, die zum grossten Teil in deutschen Handen befindliche 5 prozentige venezolanische Anleihe von 1896 zugleich mit ihrer gesamten auswartigen Schuld in befriedi- gender Weise neu zu regeln. Bei dieser Regelung sollen die fur den Schuldendienst zu verwendenden Staatseinkunfte unbeschadet der dies- bezuglich bereits bestehenden Verpflichtungen bestimmt werden.
ARTIKEL VII
Die von den deutschen Seestreitkraften weggenommenen venezo- lanischen Kriegs-und Handelsfahrzeuge werden in dem Zustande, in dem sie sich gegenwartig befinden, der Venezolanischen Regierung zuriickgegeben. Aus der Wegnahme dieser Schiffe wie aus deren Aufbewahrung konnen keine Entschadigungsanpriiche hergeleitet werden. Auch wird ein Ersatz fur Beschadigung oder Vernichtung der Schiffe nicht gewahrt.
ARTIKEL VIII
Nach Unterzeichnung dieses Protokolles soil die iiber die venezo- lanischen Hafen verhangte Blockade gemeinsam mit den Regierungen Gross-Britanniens und Italiens aufgehoben werden. Auch werden die diplomatischen Beziehungen zwischen der Kaiserlich Deutschen und der Venezolanischen Regierung wieder aufgenommen.
So geschehen in doppelter Ausfertigung in deutscher und englischer Sprache zu Washington am dreizehnten Februar Eintausand neunhun- dert und drei.
(L. S.) (gez.) HERBERT W. BOWEN (L. S.) (gez.) H. STERNBURG
Protocol of February 17, Jpoj?, between the United States of America and Venezuela for the Adjustment of Claims*
Los Estados Unidos de America y la Republica de Venezuela, por inedio de sus representantes, John Hay, Secretario de Estado de los Estados Unidos de America, y Herbert W. Bowen, Plenipotenciario de la Republica de Venezuela, han convenido en el siguiente protocolo, que han firmado.
ARTICULO I
Todas las reclamaciones poseidas por ciudadanos de los Estados Unidos de America contra la Republica de Venezuela, que no hayan
^United States Treaty Series, No. 420.
450 ORIGINAL TEXTS
sido arregladas por la via diplomatica 6 por arbitraje cntre los dos Gobiernos, y que hubieren sido presentadas por el Departamento dc Estado de los Estados Unidos 6 por su Legacion en Caracas a la Comi- sion aba jo mencionada, seran examinadas y decididas por una Comi- sion Mixta, que celebrara sus sesiones en Caracas, y que se compondra de dos miembros, uno de los cuales sera nombrado por el Presidente de los Estados Unidos, y el otro por el Presidente de Venezuela.
Se conviene en que tercero en discordia podra ser nombrado por la Reina de los Paises Bajos. Si uno de dichos comisionados 6 el ter- cero en discordia dejare de ejercer sus funciones, sera nombrado en el acto su sucesor del mismo modo que el antecesor de este. Dichos comi- sionados y tercero en discordia deben ser nombrados antes del dia primero de mayo de 1903.
Los comisionados y el tercero en discordia se reuniran en la ciudad de Caracas el dia primero de junio de 1903. El tercero en discordia presidira sus deliberaciones, y tendra facultad para dirimir cualquier cuestion sobre la que no puedan avenirse los comisionados. Antes de empezar a ejercer las funciones de su cargo, los comisionados y el tercero en discordia prestaran solemne juramento de examinar con cuidado, y de decidir imparcialmente, con arreglo a la justicia y a las estipulaciones de esta convencion, todas las reclamaciones que se les sometieren, y tales juramentos se asentaran en su libro de actas. Los comisionados, 6 en caso de que estos no puedan avenirse, el tercero en discordia decidira todas las reclamaciones con arreglo absolute a la equidad, sin reparar en objeciones tecnicas, ni en las disposiciones de la legislacion local.
Las decisiones de la comision, y en caso de su desavenencia, las del tercero en discordia, seran definitivas y concluyentes. Se estenderan por escrito. Todas las cantidades falladas seran pagaderas en moneda de oro de los Estados Unidos 6 en su equivalente en plata.
ART!CULO II
Los comisionados 6 el tercero en discordia, segun el caso, investiga- ran y decidiran tales reclamaciones con arreglo unicamente a las prue- bas 6 informes suministrados por los respectivos Gobiernos, 6 en nombre de estos. Tendran obligacion de recibir y considerar todos los documentos 6 exposiciones escritas que les fueren presentadas por los respectivos Gobiernos, 6 en su nombre, en apoyo 6 en refutacion de cualquiera reclamacion, y de oir los argumentos orales 6 escritos que hiciere el agente de cada Gobierno sobre cada reclamacion. En caso de que dejen de avenirse sus opiniones sobre cualquiera reclamacion, decidira el tercero en discordia.
Cada reclamacion se presentara formalmente a los comisionados den- tro de treinta dias contados desde la fecha de su primera reunion, a menos que los comisionados 6 el tercero en discordia prorroguen, en algun caso, por un termino que no exceda de tres meses, el periodo concedido para presentar la reclamacion. Los comisionados tendran obligacion de examinar y decidir todas las reclamaciones dentro de
THE VENEZUELAN PREFERENTIAL CASE 451
seis meses contados desde el dia en que hubieren sido formalmente presentadas por primera vez, y en caso de su desavenencia, examinara y decidira el tercero en discordia dentro de un periodo correspondiente contado desde la fecha de tal desavenencia.
ARTfcULO III
Los comisionados y el tercero en discordia llevaran un registro ex- acto de todas sus deliberaciones y acuerdos. Para ese objeto, cada comisionado nombrara un secretario versado en el idioma de cada pais para que le ayude en el despacho de los negocios que pendieren ante la comision. Salvo las estipulaciones del presente protocolo, toda cues- tion de procedimiento se remitira a la resolucion de la comision, 6 en caso de su desavenencia, a la del tercero en discordia.
ARTICULO IV
Una retribucion equitativa sera pagada por las partes contratantes, en partes iguales, a los comisionados y al tercero en discordia por sus servicios y gastos, y tambien se satisfaran de la misma manera, los demas gastos del arbitraje.
ARTfcULO V
Con el fin de pagar el importe total de las reclamaciones que se hayan de decidir de la manera que queda dicha, y otras reclamaciones de ciudadanos 6 subditos de otros Estados, el Gobierno de Venezuela reservara, y no enajenara para riingun otro objeto (empezando desde el mes de marzo de 1903) un treinta por ciento, en pagos mensuales, de las rentas aduanales de la Guaira y Puerto Cabello, y el dinero asi reservado sera distribuido con arreglo al fallo del Tribunal de la Haya.
En caso de que no se cumpla el susodicho convenio, empleados bel- gas quedaran encargados del cobro de los derechos de aduana de am- bos ptiertos, y los administraran hasta que se hayan cumpeido las obli- gaciones del Gobierno de Venezuela respecto de las referidas reclama- ciones. La remision al Tribunal de la Haya de la cuestion arriba expuesta sera objeto de un protocolo separado.
ARTfcULO VI
Todas las sumas falladas a favor de ciudadanos de los Estados Unidos, que no se hayan satisfecho, seran pagadas con puntualidad, conforme a las disposiciones de los respectivos fallos. Washington, D. C. February 17, 1903.
JOHN HAY [SEAL]
HERBERT W. Bo WEN [SEAL]
THE JAPANESE HOUSE TAX CASE
Award of the Tribunal, May 23, 1905*
Attendu qu'aux termes de Protocoles, signes a Tokyo le 28 aout 1902, tin disaccord s'est produit, entre le Gouvernement du Japon d'une part et les Gouvernements d'Allemagne, de France et de Grande- Bretagne d'autre part, touchant le sens reel et la portee des dispositions suivantes des traites respectifs et autres engagements existant entre eux, c'est-a-dire:
Paragraphe 4 de V Article XVIII du Traite de Commerce et de Navigation du 4 avril 1896 entre le Japon et FAllemagne: "Sobald diese Einverleibung erfolgt" [c'est-a-dire: quand les divers quartiers etrangers qui existent au Japon auront etc incorpores dans les com- munes respecti ves du Japon] "sollen die bestehenden, zeitlich unbegrenzten Ueberlassungsvertrage, unter welchen jetzt in den gedachten Niederlassungen Grundstiicke besessen werden, bestatigt und hinsichtlich dieser Grundstiicke sollen keine Bedingungen irgend einer anderen Art auferlegt werden, als sie in den bestehenden Ueber- lassungsvertragen enthalten sind" ; — et § 3 de la communication com- plementaire de meme date du Secretaire d'Etat des Affaires Etrangeres de 1'Empire d'Allemagne au Ministre du Japon a Berlin : "3. dass, da das Eigenthum an den im Artikel XVIII des Vert rages erwahnten Niederlassungsgrundstucken dem Japanischen Staate verbleibt, die Besitzer oder deren Rechtsnachfolger fur ihre Grundstiicke ausser dem kontraktmassigen Grundzins Abgaben oder Steuern irgend welcher Art nicht zu entrichten haben werden," et 1'alinea suivant de la reponse du Ministre du Japon de meme date a la precedente com- munication: "dass die darin unter Nummer 1 bis 4 zum Ausdruck gebrachten Voraussetzungen, welche den Erwerb dinglicher Recbte an Grundstiicken, die Errichtung von Waaren haiisern, die Steuerfreiheit der Grundstiicke in den Fremdenniederlassungen und die Erhaltung wohlerworbener Rechte nach Ablauf des Vertrages zum Gegenstande haben, in alien Punkten zutreffend sind" ;
Paragraphe 4 de 1'Article XXI du Traite revise du 4 aout 1896 entre le Japon et la France: "Lorsque les changements ci-dessus indiques auront etc effectues" [c'est-a-dire: lorsque les divers quar- tiers etrangers qui existent au Japon auront ete incorpores aux com- munes respectives du Japon et feront des lors partie du systeme municipal du Japon; et lorsque les autorites japonais competentes auront assume toutes les obligations et tous les devoirs municipaux, et que les fonds et biens municipaux qui pourraient appartenir a ces quartiers auront ete transferes aux dites autorites ], "les baux a perpetuite en vertu desquels les etrangers possedent actuellement des
1Official report, p. 43.
THE JAPANESE HOUSE TAX CASE 453
proprietes dans les quartiers seront confirmes, et les proprietes de cette nature ne donneront lieu a aucuns impots, taxes, charges, contributions ou conditions quelconques autres que ceux expressement stipules dans les baux en question" ;
Paragraphe 4 de 1' Article XVIII du Traite revise du 16 juillet 1894 entre le Japon et la Grande-Bretagne : "When such incorporation takes place" [c'est-a-dire : quand les divers quartiers etrangers qui existent au Japon auront ete incorpores aux communes respectives du Japon], "existing leases in perpetuity under which property is now held in the said settlements shall be confirmed, and no conditions what- soever other than those contained in such existing leases shall be im- posed in respect of such property" ;
Attendu que les Puissances en litige sont tombees d'accord pour soumettre leur differend a la decision d'un Tribunal d* Arbitrage,
qu'en vertu des Protocoles susmentionnes,
les Gouvernements d'Allemagne, de France et de Grande-Bretagne ont designe pour Arbitre Monsieur Louis Renault, Ministre Plenipo- tentiaire, Membre de 1'Institut de France, Professeur a la Faculte de droit de Paris, Jurisconsulte du Departement des Affaires Etrangeres, et
le Gouvernement du Japon a designe pour Arbitre Son Excellence Monsieur Itchiro Motono, Envoye Extraordinaire et Ministre Pleni- potentiaire de Sa Majeste 1'Empereur du Japon a Paris, Docteur en droit,
que les deux Arbitres sus-nommes ont choisi pour Surarbitre Mon- sieur Gregers Gram, ancien Ministre d'Etat de Norvege, Gouverneur de Province ;
Attendu que le Tribunal ainsi compose a pour mission de statuer, en dernier ressort, sur la question suivante :
Oui ou non, les dispositions des traites et autres engagements ci- dessus mentionnes exemptent-elles seulement les terrains possedes en vertu des baux perpetuels concedes par le Gouvernement Japonais ou en son nom, — ou bien exemptent-elles les terrains et les batimcnts de toute nature construits ou qui pourraient etre construits sur ces terrains, — de tous impots, taxes, charges, contributions ou conditions quelconques autres que ceux expressement stipules dans les baux en question ?
Attendu que le Gouvernement Japonais sputient que les terrains seuls sont, dans la mesure qui vient d'etre indiquee, exemptes du paie- ment d 'impots et autres charges,
que les Gouvernements d'Allemagne, de France et de Grande- Bretagne pretendent, au contraire, que les batiments, construits sur ces terrains, jouissent de la meme exemption,
Attendu que, pour se rendre compte de la nature et de 1'etendue des engagements contract es de part et d'autre par les baux a perpetuite, il faut recourir a divers arrangements et conventions intervenus, sous le regime des anciens traites, entre les autorites japonaises et les representants de plusieurs Puissances,
454 ORIGINAL TEXTS
Attendu que de ces actes et des stipulations inserees dans les baux ilresulte:
que le Gouvernement Japonais avait consent! a preter son concours a la creation de quartiers etrangers dans certaines villes et ports du Japon, ouverts aux ressortissants d'autres nations,
que, sur les terrains designes a 1'usage des etrangers dans les differentes localites, le Gouvernement Japonais a execute, a ses f rais, des travaux en vue de f aciliter 1'occupation urbaine,
que les etrangers n'etant pas, d'apres les principes du droit Japonais, admis a acquerir la propriete de terrains situes dans le pays, le Gouvernement leur a donne les terrains en location a perpetuite,
que les baux determinent 1'etendue des lots de terre loues et stipulent une rente annuelle fixe, calculee a raison de 1'espace loue,
qu'il fut convenue qu'en principe les quartiers etrangers resteraient en dehors du systeme municipal du Japon, mais qu'au reste, ils n'etaient pas soumis a une organisation uniforme,
qu'il etait arrete, par voie de reglements, comment il serait pourvu aux diverses f onctions de I'administration et qu'il etait prescrit que les detenteurs des terrains seraient tenus de subvenir partiellement aux frais de la municipalite a 1'aide de redevances dont le montant et le mode de perception etaient determines,
Attendu qu'on s'expliquerait bien le soin apporte dans la redaction des dits actes en vue de preciser les obligations de toute nature incom- bant aux etrangers vis a vis du Gouvernement Japonais, s'il etait entendu que la rente annuelle representat, non seulement le prix de la location, mais aussi la contrepartie des impots dont les preneurs eussent ete redevables a raison de la situation creee a leur profit par les baux et que, par consequent, ils n'auraient, en cette qualite, a supporter que les impots et charges qui etaient expressement mentionnes dans les dits baux,
Attendu qu-au reste, il n'est pas conteste que ce ne soit la le veritable sens de ces actes, en tant qu'il s'agit des terrains, mais que le Gouverne- ment Japonais allegue que les baux n'avaient pour objet que les terrains nus et qu'il n'admet pas que les constructions, elevees sur les terrains, fussent comprises dans les stipulations sur lesquelles rexemp- tion des impots serait fondee,
qu'il a allegue que les terrains seuls appartenaient au Gouvernement, les constructions etant, au contraire, la propriete des preneurs, et qu'en consequence Timmunite dont il est question ne pouvait s'etendre qu'aux immeubles qui n'etaient pas sortis du patrimoine de 1'Etat,
Attendu que, toutefois, la question qu'il s'agit de decider est celle de savoir si, au point de vue fiscal, les constructions elevees sur les terrains loues etaient, de commun accord, considerees comme acces- soires de ces terrains, ou non, et que a solution de cette question ne depend pas de distinctions tirees d'une pretendue difference quant a la propriete des immeubles,
que le Tribunal ne saurait done s'arreter a la discussion engagee a ce sujet et fondee sur les principes du droit civil,
THE JAPANESE HOUSE TAX CASE 455
Attendu que les terrains etaient loues poury construire des maisons, ce qui est indique, a la fois, par la situation des immeubles et par la nature des amenagements effectues par le Gouvernement Japonais,
que 1'obligation d'eriger des batiments etait, dans certaines localites, imposee sous peine de decheance, que les baux contenaient souvent une clause, aux termes de laquelle les batiments, qui se trouveraient sur les terrains, deviendraient la propriete du Gouvernement Japonais, au cas ou le preneur aurait manque a ses engagements,
Attendu qu'il f aut admettre que les circonstances qui viennent d'etre relatees offrent des arguments a Tencontre de la prevention que le sol et les constructions constituent, dans les relations entre les parties et au point de vue fiscal, des objets entierement distincts,
Attendu qu'en intervenant aux dits actes, le Gouvernement du Japon a agi, non seulement en proprietaire des terrains donnes en location, mais aussi comme investi du pouvoir souverain du pays,
Attendu que la volonte des parties faisait, par consequent, la loi en la matiere et que, pour etablir comment les actes ont etc reellement interpreters, il faut s'en rapporter au traitement auquel les detenteurs des terrains ont etc, au point de vue des impots, soumis, en fait, dans les differentes localites,
Attendu, a cet egard, qu'il est constant que, suivant une pratique qui n'a pas varie et qui a existe durant une longue serie d'annees, non seulement les terrains en question, mais aussi les batiments eleves sur ces terrains, ont ete exemptes de tous impots, taxes, charges, con- tributions ou conditions autres que ceux expressement stipules dans les baux a perpetuite,
Attendu que le Gouvernement du Japon soutient, il est vrai, que cet etat de choses, de meme que Pimmunite fiscale dont jouissaient en general les etrangers dans le pays, n'etait du qu'a la circonstance que les tribunaux consulaires refusaient de donner la sanction necessaire aux lois fi scales du pays,
Attendu que, toutefois, cette prevention est depourvue de preuves et qu'il n'est pas meme allegue que le Gouvernement Japonais ait jamais fait, vis a vis des Gouvernements d'Allemagne, de France et de Grande- Bretagne, des reserves a Teffet de maintenir les droits qu'il dit avoir eteleses,
que, bien qu'il ait ete allegue que I'immunite dont les etrangers jouissaient, en fait, au point de vue des impots, sous le regime des anciens traites, etait generale et qu'elle s'etendait aux etrangers residant en dehors des concessions en question, il resulte pourtant des renseignements fournis au sujet de detenteurs d'immeubles — ^terrains et maisons — a Hiogo, que ladite regie n'a pas ete d'une application universelle,
que, dans tous les cas, la situation de fait n'est pas douteuse, de quelque facon qu'on 1'explique,
Attendu, au point de vue de 1'interpretation des dispositions des nouveaux traites au sujet desquelles il y a contestation entre les Parties,
456 ORIGINAL TEXTS
que la redaction de Particle 18 du traite entre la Grande-Bretagne et le Japon — traite anterieur aux deux autres — avait ete precedee de propositions tendant a mettre les etrangers, detenteurs de terrains, sur le meme pied que les sujets japonais, tant au point de vue de la propriete des immeubles qui leur avaient ete concedes en location que pour ce qui concerne le paiement de taxes et d'impots, mais qu'on est ensuite tombe d'accord sur le maintien du regime qui jusqu'alors avait ete pratique,
que le Gouvernement Japonais pretend, il est vrai, que la question de maintenir le status quo ne se rapportait qu'aux terrains, mais que cette prevention ne se trouve pas justifiee par les expressions employees au cours des negociations,
qu'au contraire, le representant du Gouvernement Japonais qui a pris Tinitiative pour arriver a un accord dans ce sens s'est borne a proposer le maintien du status quo dans les concessions etrangeres (maintenance of the status quo in the foreign settlements),
qu'il n'est pas a presumer que le delegue de la Grande-Bretagne, en presentant un pro jet elabore sur la base de ladite proposition, ait entendu faire une restriction concernant les constructions, que cela ne resulte, ni des mots inseres dans le proces-verbal, ni du contenu de Tarticle par lui propose,
que, pour maintenir integralement le status quo, il ne suffirait pas d'admettre que 1'immunite fiscale, qui jusqu'a cette epoque s'etendait, tant sur les terrains que sur les constructions, dans les quartiers etrangers, serait maintenue pour le sol seulement et qu'elle cesserait d'exister pour ce qui concerne les maisons,
qu'il doit surtout en etre ainsi lorsqu'on considere que, pour se con- former a ce qui etait convenu, les Parties ne se sont pas bornees a formuler une disposition au sujet de la confirmation des baux, mais qu'elles ont ajoute qu'aucunes conditions, sauf celles contenues dans les baux en vigueur, ne seront imposees relativement a une telle propriete (no conditions whatsoever other than those contained in such existing leases shall be imposed in respect of such property),
que cette derniere clause et redigee d'une fagon encore plus expli- cite dans le traite avec la France,
Attendu qu*au surplus, dans les clauses dont il s'agit, les Puissances n'ont pas parle de terrains, comme elles auraient du necessairement le faire si rimmunite, contrairement a ce qui avait ete pratique jusque la, avait du etre restreinte aux terrains,
qu'elles ont, au contraire, employe des expressions assez larges pour comprendre dans son ensemble la situation faite par les baux aux preneurs,
Attendu que le Tribunal ne saurait, non plus, admettre que les notes echangees entre les Gouvernements d'Allemagne et du Japon, au mo- ment de la conclusion du nouveau traite, contiennent des explications de nature a placer TAllemagne dans des conditions moins avantageuses que les deux autres Puissances,
que le Gouvernement du Japon a surtout voulu tirer argument de ce que le Gouvernement Allemand a fonde 1'immunite fiscale sur ce qu'il
THE JAPANESE HOUSE TAX CASE 457
est interdit aux etrangers d'acquerir la propriete de terrains situes au Japon, mais qu'a cet egard il faut considerer qu'en fait les construc- tions avaient tou jours eu le caractere de dependances des terrains au point de vue des impots, et qu'il n'est pas a presumer que le Gouverne- ment Allemand ait entendu renoncer aux avantages consentis en faveur de la Grande-Bretagne par le nouveau traite, ce qui serait d'ailleurs en contradiction avec la clause assurant a 1'Allemagne le traitement de la nation la plus f avorisee,
PAR CES MOTIFS:
Le Tribunal d* Arbitrage, a la majorite des voix, decide et declare : Les dispositions des traites et autres engagements mentionnes dans les protocoles d'arbitrage n'exemptent pas seulement les terrains possedes en vertu des baux perpetuels concedes par le Gouvernement Japonais ou en son nom, mais elles exemptent les terrains et les bati- ments de toute nature construits ou qui pourraient etre construits sur ces terrains, de tous impots, taxes, charges, contributions ou conditions quelconques autres que ceux expressement stipules dans les baux en question.
Fait a la Haye, dans I'Hotel de la Cour permanente d'Arbitrage, le 22 mai 1905.
(Signe) G. GRAM ( " ) L. RENAULT
Au moment de proceder a la signature de la presente Sentence arbi- trale, usant de la faculte que me confere Tarticle 52, alinea 2, de la Convention pour le rcglcmcnt pa-cifique des conflits intcrnationaux ', conclue a la Haye le 29 juillet 1899, je tiens a constater mon dissenti- ment absolu avec la majorite du Tribunal, en ce qui concerne les motifs comme le dispositif de la Sentence.
(Signe) I. MOTONO
Agreement for Arbitration between Germany and Japan, August 28,
1902*
In der Erwagung,
dass zwischen den Regierungen von Deutschland, Frankreich und Grossbritannien einerseits und der Japanischen Regierung andrer- seits ein Streitfall iiber den wahren Sinn und die Bedeutung der nachstehend aufgefiihrten Bestimmungen der zwischen ihnen abge- schlossenen Vertrage und anderen Vereinbarungen entstanden ist, namlich :
Artikel XVIII, Absatz 4, des Handels — und Schiffahrtsvertrages zwischen dem Deutschen Reich und Japan vom 4. April, 1896:
"Sobald diese Einverleibung erfolgt" [das heisst, sobald die ein-
1Official report, p. 5.
458 ORIGINAL TEXTS
zelnen Fremdenniederlassungen in Japan den betreffenden Japanischen Gemeinden einverleibt sein werden], "sollen die bestehenden, zeitlich umbegrenzten Ueberlassungsvertrage, unter welchen jetzt in den ge- dachten Niederlassungen Grundstiicke besessen werden, bestatigt und hinsichtlich dieser Grundstiicke sollen keine Bedingungen irgend einer anderen Art Auferlegt werden, als sie in den bestehenden Ueberlas- sungsvertragen enthalten sind";
ferner, Ziffer 3 der Note des Kaiserlich Deutschen Staatssekretars des Auswartigen Amts vom selben Tage an den Kaiserlich Japanischen Gesandten in Berlin:
"3. dass, da das Eigenthum an den im Artikel XVIII des Vertrages erwahnten Niederlassungsgrundstiicken dem Japanischen Staate ver- bleibt, die Besitzer oder deren Rechtsnachfolger fur ihre Grundstiicke ausser dem kontraktmassigen Grundzins Abgaben oder Steuern irgend welcher Art nicht zu entrichten haben werden" ;
Und im Absatz 1 der Erwiderung des Japanischen Gesandten vom selben Tage auf die vorhergehende Note:
"das die darin unter Nummer 1 bis 4 zum Ausdruck gebrachten Voraussetzungen, welche den Erwerb dinglicher Rechte an Grund- stiicken, die Errichtung von Waarenhausern, die Steuerfreiheit der Grundstiicke in den Fremdenniederlassungen und die Erhaltung woh- lerworbener Rechte nach Ablauf des Vertrages zum Gegenstande haben, in alien Punkten zutreff end sind" ;
Artikel XXI, Absatz 4, des revidirten Vertrages Zwischen Frank- reich und Japan vom 4. August, 1896:
"Lorsque les changements ci-dessus indiques auront ete efectues" [das heisst: sobald die einzelnen Fremdenniederlassungen in Japan den betreffenden Japanischen Gemeinden einverleibt sein und Bestand- theile der Japanischen Gemeinden bilden werden; und sobald die zustandigen Japanischen Behorden alle municipalen Verbindlichkeiten und Verpflichtungen ubernommen haben un die municipalen Gelder und Vermogensgegenstande, welche diesen Niederlassungen gehoren, den genannten Japanischen Behorden iibergeben sein werden], "les baux a perpetuite en vertu desquels les etrangers possedent actuelle- ment des proprietes dans les quartiers seront confirmes, et les pro- prietes de cette nature ne donneront lieu a aucuns impots, taxes, charges, contributions ou conditions quelconques autres que ceux ex- pressement stipules dans les baux en question"; und
Artikel XVIII, Absatz 4, des revidirten Vertrages vom 16. Juli, 1894, zwischen Grossbritannien und Japan:
"When such incorporation takes place" [das heisst: sobald die einzelnen Fremdenniederlassungen in Japan den betreffenden Japanis- chen Gemeinden einverleibt sein werden], "existing leases in per- petuity under which property is now held in the said Settlements shall be confirmed, and no conditions whatsoever other than those contained in such existing leases shall be imposed in respect of such property";
In der Erwagung,
dass der Streitfall auf gewohnlichem diplomatischen Wege nicht erledigt werden kann ;
THE JAPANESE HOUSE TAX CASE 459
Und in der Erwagung,
dass die betheiligten Machte, welche Signatarmachte des Haager Abkommens zur friedlichen Erledigung internationaler Streitfalle sind, beschlossen haben, den Streitfall dadurch zu erledigen, dass sic denselben in Gemassheit der Bestimmungen des vorerwahnten Abkom- mens einem unparteiischen Schiedsgericht unterbreiten ;
haben die genannten Regierungen zur Ausfiihrung dieses Ent- schlusses die nachstehenden Vertreter, namlich:
die Regierung von Deutschland:
den Ausserordentlichen Gesandten und Bevollmachtigten Minister Seiner Majestat des Deutschen Kaisers, Konigs von Preussen, Herrn Graf en von Arco Valley;
die Regierung von Frankreich :
den Bevollmachtigten Minister, Geschaftstrager von Frankreich, Herrn G. Dubail;
die Regierung von Grossbritannien :
den Ausserordentlichen Gesandten und Bevollmachtigten Minister Seiner Majestat des Konigs von Grossbritannien, Sir Claude Maxwell Macdonald, G.C.M.G., K.C.B. ;
die Regierung von Japan:
den Minister der Auswartigen Angelegenheiten Seiner Majestat des Kaisers von Japan, Herrn Baron Komura Jutaro;
ermachtigt, das nachstehende Protokoll abzuschliessen :
I. Die an dem Streitfall betheiligten Regierungen kommen dahin iibcrein, dass das Schiedsgericht, welchem der Streitfall zur endgulti- gen Entscheidung vorzulegen ist, aus drei Mitgliedern bestehen soil, die dem standigen Schiedshof im Haag angehoren und in nachstehen- der Weise zu bestimmen sind:
Jede Partei hat sobald wie moglich, jedenfalls nicht spater als zwei Monate nach dem Datum dieses Protokolls, einen Schiedsrichter zu ernennen, und die beiden so ernannten Schiedsrichter haben gemein- schaftlich einen Obmann zu wahlen. Wenn die beiden Schiedsrichter zwei Monate nach ihrer Ernennung einen Obmann noch nicht gewahlt haben, so soil Seine Majestat der Konig von Schweden und Nor- wegen gebeten werden, einen Obmann zu ernennen.
II. Die Streitfrage, iiber welche die in diesem Schiedsverfahreii streitenden Parteien eine endgiiltige Entscheidung des Schiedsgerichts erbitten, ist folgende:
Befreien die vorerwahnten Bestimmungen der Vertrage und iibrigen Vereinbarungen lediglich den Grund und Boden, welcher unter den zeitlich unbegrenzten, von der Japanischen Regierung oder fur die- selbe abgeschlossenen Ueberlassungsvertragen besessen wird, oder befreien sie Grund und Boden und Gebaude jeglicher Art, welche auf diesem Grund und Boden errichtet sind oder in der Folge errichtet werden sollten, von alien Abgaben, Steuern, Lastem, Contributionen oder Bedingungen jeder Art, welche nicht ausdriicklich in den betref- fenden Ueberlassungsvertragen festgesetzt sind?
III. Innerhalb von acht Monaten, vom Datum dieses Protokolls an gerechnet, soil jede Partei den einzelnen Mitgliedern des Schiedsge-
460 ORIGINAL TEXTS
richts und der Gegenpartei in je einem Exemplar eine vollstandige, geschriebene oder gedruckte Darstellung des Streit falls, ihrer Griinde und des Beweismaterials iiberreichen, auf welche sie sich in dem gegenwartigen Schiedsverfahren stiitzt. Innerhalb von weiteren sechs Monaten haben beide Parteien in gleicher Weise in geschriebener oder gedruckter Form ihre Gegenvorstellungen nebst deren schliesslicher Begriindung sowie das erganzende Beweismaterial einzureichen ; diese Gegenvorstellungen, deren Begriindung und das erganzende Beweis- material sollen indessen lediglich eine Erwiderung auf die von der Gegenpartei eingereichte Darstellung des Streitfalls, auf dessen Be- griindung und auf das darauf beziigliche Beweismaterial enthalten.
IV. Jeder Partei steht das Recht zu, dem Schiedsgericht als Be- weismaterial alle diejenigen Urkunden, Schriftstiicke, amtlichen Cor- respondenzen und anderen offiziellen oder offentlichen Erklarungen und Akten iiber den Streitgegenstand zu unterbreiten, deren Vorle- gung sie als nothwendig erachtet. Wenn aber eine Partei in ihrer Darstellung des Streitfalls, ihrer Gegenvorstellung oder Begriindung ein in ihrem ausschliesslichen Besitz befindliches Schriftstuck erwahnt oder auf ein solches Bezug nimmt, ohne eine Abschrift beizufiigen, *o ist sie verpflichtet, der Gegenpartei auf deren Verlangen innerhalb von dreissig Tagen nach Stellung des beziiglichen Antrags eine Abschrift des betreffenden Schriftsiicks auszuhandigen.
V. Jede Partei ist berechtigt, vorbehaltlich des Rechts einer Er- widerung seitens der Gegenpartei, dem Schiedsgericht innerhalb einer von ihm zu bestimmenden Frist zur geeigneten Verwerthung eine Aufzeichnung derjenigen Einwendungen vorzulegen, die sie beziiglich der von der anderen Partei eingereichten Gegenvorstellung, deren Begriindung und des erganzenden Beweismaterials erhebt, wenn sie der Ansicht ist, dass die betreffenden Schriftstiicke oder einige dersel- ben unerheblich oder unrichtig sind, oder sich nicht genau in den Grenzen einer Erwiderung auf die Darstellung des Streitfalls, deren Begriindung oder auf das Beweismaterial halten.
VI. Abgesehen von den unter Nummer III und V dieses Protokolls aufgefuhrten, sollen keine Schriftstiicke oder Mittheilungen in schrift- licher oder mundlicher Form in dem Schiedsverfahren zugelassen oder berucksichtigt werden, es sei denn, dass das Schiedsgericht von einer Partei neue oder erganzende, in schriftlicher Form abzugebende Erlauterungen oder Aufschliisse verlangt. Sind diese Erlauterungen oder Aufschlusse gegeben, so soil die Gegenpartei berechtigt sein, sich hierauf innerhalb einer vom dem Schiedsgericht zu bestimmenden Frist schriftlich zu aussern.
VII. Das Gericht soil an einem spater von den Parteien zu bezeich- nenden Ort so bald wie thunlich zusammentreten, aber nicht eher als zwei Monate und nicht spater als drei Monate nach Einreichung der Gegenvorstellung gemass Nummer III dieses Protokolls; es soil den Streitfall unparteiisch und sorgfaltig priifen und entscheiden. Die Entschcidung des Gerichtes soil, wenn moglich, innerhalb eines Monats nach dem Zeitpunkt verkiindet werden, an dem der President die Verhandlnng fur geschlossen erklart hat.
THE JAPANESE HOUSE TAX CASE 461
VIII. In dem Schiedsverfahren ist die Japanische Regierung als die eine Partei anzusehen, wahrend die Regierungen von Deutschland, Frankreich und Grossbritannien zusammen als die andere Partei gelten.
IX. Sofern in diesem Protokoll nichts anderes vorgesehen ist, sollen in dem gegenwartigen Schiedsverfahren die Vorschriften dcs Haager Abkommens zur f riedlichen Erledigung internationaler Streit- falle zur Anwendung kommen.
So geschehen in Tokio am 28. August, 1902 (28. Tag des 8. Monats des 35. Jahres Meiji).
GEZ. GRAF VON ARCO VALLEY GEZ. JUTARO KOMURA
Agreement for Arbitration between France and Japan, August
Attendu qu'un disaccord s'est produit entre le Gouvernement du Japon d'une part, et les Gouvernements de France, d'Allemagne et de Grande-Bretagne d'autre part, touchant le sens reel et la portee des dispositions suivantes des Traites respectifs et autres engagements existant entre eux, c'est-a-dire :
Paragraphe 4 de FArticle XVIII du Traite de Commerce et de Navigation du 4 Avril, 1896, entre le Japon et TAllemagne: "Sobald diese Einverleibung erfolgt" fc'est-a-dire : quand les divers quartiers etrangers qui existent au Japon auron etc incorpores dans les Com- munes respectives du Japon], "sollen die bestehenden, zeitlich unbe- grenzten Ueberlassungsvertrage, unter welchen jetzt in den gedachteii Niederlassungen Grundstiicke besessen werden, bestatigt und hinsicht- lich dieser Grundstiicke sollen keine Bedingungen irgend einer anderen Art auferlegt werden, als sie in den bestehenden Ueberlassungsver- tragen enthalten sind"; et §3 de la communication complementaire de meme date du Secretaire d'Etat des Affaires Etrangeres de TEmpire d'Allemagne au Ministre du Japon a Berlin: "3. dass, da das Eigen- thum an den im Artikel XVIII des Vertrages erwahnten Niederlas- sungsgrundstiicken dem Japanischen Staate verbleibt, die Besitzer oder deren Rechtsnachfolger fiir ihre Grundstiicke ausser dem kon- traktmassigen Grundzins Abgaben oder Steuern irgend welcher Art nicht zu entrichten haben werden," et Talinea suivant de la reponse du Ministre du Japon de meme date a la precedente communication: "dass die darin unter Nummer 1 bis 4 zum Ausdruck gebrachten Voraussetzungen, welche den Erwerb dinglicher Rechte an Grund- stucken, die Errichtung von Waarenhausern, die Steuerfreiheit der Grundstiicke in den Fremdenniederlassungen und die Erhaltung wohlerworbener Rechte nach Ablauf des Vertrages zum Gegenstande haben, in alien Punkten zutreffend sind";
Paragraphe 4 de 1'Article XXI du Traite revise de 4 Aout, 1896,
Official report, p. 9.
462 ORIGINAL TEXTS
entre le Japon et la France: "Lorsque les changements ci-dessus indiques auront etc effectues" [c'est-a-dire: lorsque les divers quar- tiers etrangers qui existent au Japon auront etc incorpores aux Com- munes respectives du Japon et feront des lors partie de systeme mu- nicipal du Japon; et lorsque les Autorites Japonaises competentes auront assume toutes les obligations et tous les devoirs municipaux, et que les fonds et biens municipaux qui pourraient appartenir a ces quartiers auront 6te transferes aux dites autorites], "les baux a per- petuite en vertu desquels les etrangers possedent actuellement des pro- prietes dans les quartiers seront confirmes, et les proprietes de cette nature ne donneront lieu a aucuns impots, taxes, charges, contributions ou conditions quelconques autres que ceux expressement stipules dans les baux en question";
Paragraphe 4 de TArticle XVIII du Traite revise du 16 Juillet, 1894, entre le Japon et la Grande-Bretagne : "When such incorpora- tion takes place" [c'est-a-dire: quand les divers quartiers etrangers que existent au Japon auront etc incorpores aux Communes respec- tives du Japon], "existing leases in perpetuity under which property is now held in the said Settlements shall be confirmed, and no condi- tions whatsoever other than those contained in such existing leases shall be imposed in respect of such property" ;
Attendu que le litige n'est pas susceptible d'etre regie par la voie diplomatique ;
Attendu que les Puissances en desaccord, co-Signataires de la Con- vention de La Haye pour le reglement pacifique des conflits interna- tionaux, ont resolu de terminer ce differend, en soumettant la ques- tion a un arbitrage impartial suivant les stipulations de la dite Convention ;
Les dites Puissances ont, dans le but de realiser ces vues, autorise les Representants ci-dessous designes, a savoir:
Le Gouvernement Franqais : M. G. Dubail, Ministre Plenipotentiaire, Charge d* Affaires de la Republique Frangaise;
Le Gouvernement Allemand : M. le Comte d'Arco Valley, Envoy e Extraordinaire et Ministre Plenipotentiaire de Sa Majeste I'Empereur d'Allemagne, Roi de Prusse;
Le Gouvernement de Grande-Bretagne: Sir Claude Maxwell Mac- d on aid, G.C.M.G., K.C.B., Envoye Extraordinaire et Ministre Pleni- potentiaire de Sa Majeste le Roi de Grande-Bretagne;
Le Gouvernement du Japon : M. le Baron Komura Jutaro, Ministre des Affaires Etrangeres de Sa Majeste 1'Empereur du Japon; a, conclure le Protocole suivant:
I. Les Puissances en litige decident que le Tribunal Arbitral auquel la question sera soumise en dernier ressort sera compose de trois mem- bres pris parmi les Membres de la Cour Permanente d'Arbitrage de La Haye et qui seront designes de la maniere suivante:
Chaque Partie, aussitot que possible, et dans un delai qui n'ex- cedera pas deux mois a partir de la date de ce Protocole, devra nom- mer un Arbitre, et les deux Arbitres ainsi designes choisiront ensemble un sur-Arbitre. Dans le cas ou les deux Arbitres n'auront pas, dans
THE JAPANESE HOUSE TAX CASE 463
le delai de deux mois apres leur designation, choisi un sur-Arbitre, Sa Majeste le Roi de Suede et Norvege sera prie de nommer un sur- Arbitre.
II. La question en litige sur laquelle les Parties demandent au Tribunal Arbitral de prononcer une decision definitive est la suivante:
Oui ou non, les dispositions des Traites et autres engagements ci- dessus menticnnes, exemptent-elles seulement les terrains possedes en vertu des baux perpetuels concedes par le Gouvernement Japonais ou en son nom, ou bien exemptent-elles les terrains et les batiments de toute nature construits ou qui pourraient etre construits sur ces terrains, de tous impots, taxes, charges, contributions ou conditions quelconques autres que ceux expressement stipules dans les baux en question ?
III. Dans le delai de huit mois apres la date de ce Protocole, chaque Partie devra remettre aux differents membres du Tribunal et a 1'autre Partie, les copies completes, ecrites ou imprimees, de son Memoire contenant toutes pieces a 1'appui et arguments produits par elle au present Arbitrage. Dans un delai de six mois au plus apres cette remise, une communication semblable sera faite des copies manuscrites ou imprimees, des Contre-Memoires, pieces a 1'appui et conclusions finales des deux Parties: il est bien entendu que ces re- pliques, documents additionnels et conclusions finales devront se limiter a repondre au Memoire principal et aux argumentations pro- duites precedemment.
IV. Chaque Partie aura le droit de soumettre au Tribunal Arbitral comme instruments a faire valoir, tous les documents, Memoires, correspondances officielles, declarations ou actes officiels ou publics se rapportant a 1'objet de 1'Arbitrage et qu'elle jugera necessaire. Mais si, dans les Memoires, Contre-Memoires ou arguments soumis au Tri- bunal, Tune ou Tautre Partie s'est referee ou a fait allusion a un document ou papier en sa possession exclusive dont elle n'aura pas joint la copie, elle sera tenue, si Tautre Partie le juge convenable, de lui en donner la copie dans les trente jours qui en suivront la demande.
V. Chacune des Parties peut, si elle le juge convenable, mais sous la reserve d'un droit de reponse de la part de 1'autre Partie, dans un temps qui sera fixe par le Tribunal Arbitral, presenter, a telles fins que celui-ci jugera utiles, un etat de ces objections aux Contre- Memoires, instruments additionnels, et conclusions finales de 1'autre Partie, dans le cas ou ces documents ou Tun d'eux n'auraient pas trait a la question, seraient erronnes ou ne se limiteraient pas a repondre strictement au Memoire principal et a son argumentation.
VI. Ni papiers, ni communications, soit ecrites, soit orales, autres que ceux prevus par les paragraphes III et V de ce Protocole ne devront etre acceptes ou pris en consideration dans le present Arbi- trage a inins que le Tribunal ne demande a Tune ou 1'autre Partie une explication ou information supplemental qui devra etre donnee par ecrit. Dans ce cas, 1'autre Partie aura le droit de presenter une reponse ecrite dans un delai a fixer par le Tribunal.
464 ORIGINAL TEXTS
VII. Le Tribunal se reunira en un lieu indique plus tard par les Parties, aussitot que possible, mais ni avant deux mois, ni plus tard que trois mois a dater de la remise des Contre-Memoires prevue au Paragraphe III de ce Protocole; il procedera avec impartialite et soin a Texamen et au jugement du litige. Le jugement du Tribunal sera prononce autant que possible dans le delai d'un mois apres la cloture par le President des debats de 1'Arbitrage.
VIII. Dans cet Arbitrage, le Gouvernement Japonais sera considere comme etant Tune des Parties, et les Gouvernements Francais, Alle- mand, et de la Grande-Bretagne conjointement comme etant Pautre Partie.
IX. En tout ce qui n'est pas prevu par le present Protocole, les stipulations de la Convention de La Haye pour le reglement pacifique des conflits internationaux seront appliquees a cet Arbitrage.
Fait a Tokio le 28 Aout, 1902, correspondant au 28*me jour du geme mois de la 356me annee de Meiji.
Signe: G. DUBAIL Signer JUTARO KOMURA
Extract from the Treaty of Commerce and Navigation of April 4, 1896, between Germany and Japan1
ART. 18. Die vertragschliessenden Theile sind iiber Folgendes einverstanden :
Die einzelnen Fremdenniederlassungen in Japan sollen den betref- fenden japanischen Gemeinden einverleibt werden und bin fort Be- standtheile der japanischen Gemeinden bilden.
Die zustandigen japanischen Behorden sollen demnach mit Bezug auf dieselben alle Verbindlichkeiten und Verpflichtungen ubernehmen, welche ihnen hinsichtlich der Gemeinden obliegen, und gleichzeitig sollen die offentlichen Gelder und Vermogensgegenstande, welche diesen Niederlassungen gehoren, den genannten japanischen Behorden iibergeben werden.
Sobald diese Einverleibung erfolgt, sollen die bestehenden, zeitlich unbegrenzten Ueberlassungsvertrage, unter welchen jetzt in den ge- dachten Niederlassungen Grundstiicke besessen werden, bestatigt und hinsichtlich dieser Grundstiicke sollen keine Bedingungen irgend einer anderen Art auferlegt werden, als sie in den bestehenden Ueberlas- sungsvertragen enthalten sind.
Die Besitzrechte an diesen Niederlassungsgnindstiicken konnen in Zukunft von ihren Besitzern frei und, ohne dass es dazu, wie bisher in gewissen Fallen, der Genehmigung der konsularischen oder japanis- chen Behorden bedarf , an Inlander oder Au slander veraussert werden.
Im Uebrigen gehen die nach den urspriinglichen Uebc rlassungs- vertragen den Konsularbehorden zustehenden Funktionen auf die japanischen Behorden uber.
1Martcns, Nouveau Rccueil Gtntral de Traitts, 2d series, vol. 23, p. 275.
THE JAPANESE HOUSE TAX CASE 465
Alle Landereien, welche von de japan ischen Regierung fur 6f- f entliche Zwecke der Fremdenniederlassung bisher zinsf rei hergegeben worden sind, sollen, unbeschadet der aus der Gebietshoheit sich erge- benden Rechte, frei von alien Steuern und Lasten den offentlichen Zwecken, fur welche sie ursprunglich bestimmt worden, dauernd erhalten bleiben.
ART. 19. Der gegenwartige Vertrag erstreckt sich auch auf die mit einem der vertragschliessenden Theile gegenwartig oder kiinftig zoll- geeinten Gebiete.
ART. 20. Der gegenwartige Vertrag tritt vom Tage seines vollen Inkrafttretens ab an die Stelle des Vertrages vom 20. Februar 1869, sowie derjenigen Abkommen und Uebereinkiinfte, welche in Ergan- zung des letzteren Vertrages abgeschlossen sind oder bestehen. Von demselben Tage ab verlieren jene fruheren Vereinbarungen ihre Wirksamkeit, und demgemass hort alsdann die bis dahin in Japan ausgeiibte Gerichtsbarkeit deutscher Gerichtsbehorden auf und errei- chen alle ausnahmsweisen Privilegien, Befreiungen und Immunitaten, die bis dahin die deutschen Reichsangehorigen als einen Bestandtheil oder einen Ausfluss dieser Gerichtsbarkeit genossen, ohne Weiteres ihre Endschaft. Diese Gerichtsbarkeit wird alsdann von japanischen Gerichten ubernommen und ausgeubt werden.
Extract from the Treaty of Commerce and Navigation of August 4, 1896, between France and Japan*
XXL Le Gouvernement de la Republique Franchise donne, en ce qui le concerne, son adhesion a 1'arrangement suivant:
Les divers quartiers etrangers qui existent au Japon seront incor- pores aux communes respectives du Japon et feront des lors partie du systeme municipal du Japon.
Les autorites Japonaises competentes assumeront en consequence toutes les obligations et tous les devoirs municipaux qui resultent de ce nouvel etat de choses, et les fonds et biens municipaux qui pour- raient appartenir a ces quartiers seront, de plein droit, transferees aux dites autorites Japonaises.
Lorsque les changements ci-dessus indiques auront etc effectues, les baux a perpetuite, en vertu desquels les etrangers possedent actuelle- ment des proprietes dans les quartiers seront confirmes, et les pro- prietes de cette nature ne donneront lieu a aucuns impots, taxes, charges, contributions, ou conditions quelconques autres que ceux ex- pressement stipules dans les baux en question. II est entendu toute- fois qu'aux autorites Consulaires dont il y est fait mention seront substitutes les autorites Japonaises.
Les terrains que le Gouvernement Japonais aurait concedes exempts de rentes, vu 1'usage public auquel ils etaient affectes, resteront, sous la reserve de droits de la souverainete territoriale, afFranchis d'une
1 British and Foreign State Papers, vol. 88, p. 536.
466 ORIGINAL TEXTS
maniere permanente de tous impots, taxes, et charges; et ils ne seront point detournes de 1'usage auquel its etainet primitivement destines.
XXII. Les dispositions du present Traite sont applicables a 1'Al- gerie. II est entendu qu'elles deviendraient en outre applicables aux Colonies Franchises pour lesquelles le Gouvernement Francois en| reclamerait le benefice. Le Representant de la Republique Franchise a Tokio aurait a cet effet a le notifier au Gouvernement Japonais dans un delai de deux ans a dater du jour de 1'echange des ratifications du present Traite.
XXIII. A dater de la mise en vigueur du present Traite seront abroges le Traite du 9 Octobre, 1858, la Convention du 25 Juin, 1866, et en general tous les arrangements conclus entre las Hautes Parties Contractantes existant anterieurement a cette date. En consequence, la juridiction Franchise au Japon et les privileges, exemptions, ou immunites dont les Frangais jouissaient en matiere juridictionnellc seront supprimes de plein droit et sans qu'il soit besoin de notifica- tion, du jour de la mise en vigueur du present Traite; et les Frangais seront des lors soumis a la juridiction des Tribunaux Japonais,
THE MUSCAT DHOWS CASE
Award of the Tribunal, August 8, 1905*
Le Tribunal d* Arbitrage constitue en vertu du Compromis conclu a Londres le 13 octobre 1904, entre la France et la Grande Bretagne ;
Attendu que le Gouvernement Frangais et celui de Sa Majeste Britannique ont juge convenable, par la Declaration du 10 mars 1862, "de s'engager reciproquement a respecter Findependance" de Sa Hautesse le Sultan de Mascate,
Attendu que des difficultes se sont elevees sur la portee de cette Declaration relativement a la delivrance, par la Republique Frangaise, a certains sujets de Sa Hautesse le Sultan de Mascate de pieces les autorisant a arborer le pavilion Francais, ainsi qu'au sujet de la nature des privileges et immunites revendiques par les sujets de Sa Hautesse, proprietaires ou commandants de boutres ("dhows") qui sont en pos- session de semblables pieces ou qui sont membres de Tequipage de ces boutres et leurs families, particulierement en ce qui concerne le mode suivant lequel ces privileges et ces immunites affectent le droit de juridiction de Sa Hautesse le Sultan sur ses dits sujets,
Attendu que les deux Gouvernements sont tombes d'accord par le Compromis du 13 octobre 1904 de faire decider ces difficultes par voie d'arbitrage conformement a Particle 1 de la Convention conclue par les deux Puissances le 14 octobre 1903,
Attendu qu'en execution de ce Compromis ont etc nommes Arbitres,
par le Gouvernement de Sa Majeste Britannique:
Monsieur Melville W. Fuller, Chief Justice des Etats-Unis d'Ame- rique, et
par le Gouvernement de la Republique Frangaise:
Monsieur le Jonkheer A. F. de Savornin Lohman, Docteur en droit, ancien Ministre de Tlnterieur des Pays-Bas, ancien Professeur a TUniversite libre a Amsterdam, Membre de la Seconde Chambre des Etats-Generaux,
Attendu que ces Arbitres n'etant pas tombes d'accord dans le delai d*un mois a partir de leur nomination sur le choix d'un Surarbitre, ce choix etant devolu des lors en vertu de 1'article 1 du Compromis au Roi d'ltalie, Sa Majeste a nomme comme Surarbitre:
Monsieur Henri Lammasch, Docteur en droit, Professeur de droit international a TUniversite a Vienne, Membre de la Chambre des Seigneurs du Parlement Autrichien,
Attendu que les Memoires, Contre-Memoires et Conclusions ont ete dument communiques au Tribunal et aux Parties,
Attendu que le Tribunal a examine avec soin ces documents, et les
1Official report, p. 61.
468 ORIGINAL TEXTS
observations supplementaires qui leur ont ete presentees par les deux Parties;
QUANT A LA PREMIERE QUESTION:
Considerant, qu'en general il appartient a tout Souverain de decider a qui il accordera le droit d'arborer son pavilion et de fixer les regies auxquelles 1'octroi de ce droit sera soumis, et considerant qu'en conse- quence 1'octroi du pavilion Frangais a des sujets de Sa Hautesse le Sultan de Mascate ne constitue en soi aucune atteinte a I'independance du Sultan,
Considerant que neanmoins un Souverain peut etre limite dans 1'exercice de ce droit par des traites, et considerant que le Tribunal en vertu de 1'article 48 de la Convention pour le reglement pacifique des conflits internationaux du 29 juillet 1899 et de 1'article 5 du Compro- mis du 13 octobre 1904, "est autorise a determiner sa competence en interpretant le compromis ainsi que les autres traites qui peuvent etre invpques dans la matiere, et en appliquant les principes du droit inter- national," et qu'en consequence la question se pose sous quelles condi- tions les Puissances qui ont accede a TActe General de la Conference de Bruxelles du 2 juillet 1890 concernant la suppression de la traite aes esclaves africaine, specialement a 1'article 32 de cet Acte, ont le droit d'autoriser des navires indigenes a arborer leurs pavilions,
Considerant que par 1'article 32 de cet Acte la f acult£ des Puissances Signataires d'octroyer leur pavilion a des navires indigenes a ete limitee dans le but de supprimer la traite des esclaves et dans les interets generaux de I'humanite, sans faire aucune distinction si celui qui solli- cite le droit d'arborer le pavilion appartient a un etat signataire ou non, et considerant qu'en tout cas la France est liee vis a vis de la Grande Bretagne de n'octroyer son pavilion que sous les conditions prescrites par cet Acte,
Considerant que pour atteindre le but susdit les Puissances Signa- taires de 1'Acte de Bruxelles sont convenues par 1'article 32, que Tautorisation d'arborer le pavilion d'une des dites Puissances ne sera accordee a 1'avenir qu'aux bailments indigenes qui satisferont a la fois aux trois conditions suivantes:
1°. Les armateurs ou proprietaires devront etre sujets ou proteges de la Puissance dont ils demandent a porter les couleurs,
2°. Ils seront tenus d'etablir qu'ils possedent des biensfonds dans la circonscription de 1'autorite a qui est adressee leur demande, ou de fournir une caution solvable pour la garantie des amendes qui pourraient etre eventuellement encourues.
3°. Les dits armateurs ou proprietaires, ainsi que le capitaine du bailment, devront fournir la preuve qu'ils jouissent d'une bonne repu- tation et notamment n'avoir jamais ete 1'objet d'une condamnation pour faits de traite,
Considerant qu'a defaut d'une definition du terme "protege" dans I* Acte General de la Conference de Bruxelles, il faut entendre ce terme dans le sens qui correspond le mieux tant aux intentions elevees de cette Conference et de 1'Acte Final qui en est result^, qu'aux principes
THE MUSCAT DHOWS CASE 469
du droit international tels qu'ils ont etc exprimes dans les conventions en vigueur a cette eppque, dans la legislation na-tionale en tant qu'elle a obtenu une reconnaissance Internationale et dans la pratique du droit des gens,
Considerant que le but de Particle 32 susdit est de n'admettre a la navigation dans ces mers infestees par la traite des esclaves que ceux des navires indigenes qui sont soumis a la plus stricte surveillance des Puissances Signataires, condition dont raccomplissement ne peut etre assure que si les proprietaires, armateurs et equipages de ces navires sont exclusivement soumis a la souverainete et a la juridiction de PEtat, sous le pavilion duquel ils exercent la navigation,
Considerant que depuis la restriction que le terme "protege" a subie en vertu de la legislation de la Porte Ottomane en 1863, 1865 et 1869, specialement de la loi Ottomane du 23 sefer 1280 (aout 1863), impli- citement acceptee par les Puissances qui jouissent du droit des capitu- lations, et depuis le traite conclu entre la France et le Maroc en 1863, auquel ont accede un grand nombre d'autres Puissances et qui a obtenu la sanction de la Convention de Madrid du 30 juillet 1880, le terme "protege" n'embrasse par rapport aux Etats a capitulations que les categories suivantes: 1°. les personnes sujets d'un pays qui est sous le protectorat de la Puissance dont elles reclament la protection, 2°. les individus qui correspondent aux categories enumerees dans les traites avec le Maroc de 1863 et de 1880 et dans la loi Ottomane de 1863, 3°. les personnes, qui par un traite special ont ete reconnues comme "proteges," telles que celles enumerees par Particle 4 de la Convention Franco-Mascataise de 1844 et 4°. les individus qui peuvent etablir qu'ils ont ete considered et traites comme proteges par la Puis- sance en question avant Pannee dans laquelle la creation de nouveaux proteges fut reglee et limitee, c'est-a-dire avant Pannee 1863, ces in- dividus n'ayant pas perdu leur status une fois legitimement acquis,
Considerant que, quoique les Puissances n'aient renonce expressis z'erbis a Pexercice du pretendu droit de creer des proteges en nombre illimite que par rapport a la Turquie et au Maroc, neanmoins Pexer- cice de ce pretendu droit a ete abandonne de meme par rapport aux autres Etats Orientaux, Panalogie ayant tou jours ete reconnue comme un moyen de completer les dispositions ecrites tres defectueuses des capitulations, en tant que les circonstances sont analogues,
Considerant d'autre part que la concession de facto de la part de la Turquie, de transmettre le status de "proteges" aux descendants de personnes qui en 1863 avaient joui de la protection d'une Puissance Chretienne, ne peut etre etendue par analogic a Mascate, les circon- stances etant entierement differentes, puisque les proteges des Etats Chretiens en Turquie sont d'une race, nationalite et religion differentes de celles de leurs maitres Ottomans, tandis que les habitants de Sour et les autres Mascatais qui pourraient solliciter le pavilion Frangais, se trouvent a tous ces egards entierement dans la meme condition que les autres sujets du Sultan de Mascate,
Considerant que les dispositions de Particle 4 du Traite Franco- Mascatais de 1844 s'appliquent seulement aux personnes qui sont bona
470 ORIGINAL TEXTS
fide au service des Frangais, mais pas aux personnes qui demandent des titres de navires dans le but d'exercer quelque commerce,
Considerant que le fait d'avoir donne avant la ratification de la Convention de Bruxelles le 2 Janvier 1892 des autorisations d'arborer le pavilion Frangais a des navires indigenes ne repondant pas aux conditions prescrites par Tarticle 32 de cet Acte n'etait pas en con- tradiction avec une obligation Internationale de la France,
PAR CES MOTIFS, decide et prononce ce qui suit:
1°. avant le 2 Janvier 1892 la France avait le droit d'autoriser des navires appartenant a des sujets de Sa Hautesse le Sultan de Mas- cate a arborer le pavilion Frangais, n'etant liee que par ses propres lois et reglements administratif s ;
2°. les boutriers, qui avant 1892 avaient ete autorises par la France a arborer le pavilion Frangais, conservent cette autorisation aussi long- temps que la France la continue a celui qui Tavait obtenue;
3°. apres le 2 Janvier 1892 la France n'avait pas le droit d'autoriser des navires appartenant a des sujets de Sa Hautesse le Sultan de Mas- cate a arborer de pavilion Frangais, que sous condition que leurs proprietaires ou armateurs avaient ou auraient etabli qu'ils ont et6 considered et traites par la France comme ses "proteges" avant 1'annee 1863;
QUANT A LA 2me QUESTION :
Considerant que la situation legale de navires portant des pavilions etrangers et des proprietaires de ces navires dans les eaux territoriales d'un Etat Oriental est determinee par les principes generaux de juri- diction, par les capitulations ou autres traites et par la pratique qui en est resultee,
Considerant que les termes du Traite d'Amitie et de Commerce entre la France et 1'Iman de Mascate du 17 novembre 1844 sont, sur- tout en raison des expressions employees dans Tarticle 3 "Nul ne pourra, sous aucun pretexte, penetrer dans les maisons, magasins et autres proprietes, possedes ou occupes par des Frangais ou par des personnes au service des Frangais, ni les visiter sans le consentement de Toccupant, a moins que ce ne soit avec 1'intervention du Consul de France," assez larges pour embrasser aussi bien des navires que d'autres proprietes,
Considerant que, quoiqu'il ne saurait etre nie qu'en admettant le droit de la France d'octroyer dans certaines circpnstances son pavilion a des navires indigenes et de soustraire ces navires a la visite par les autorites du Sultan ou en son nom, la traite des esclaves est facilitee, parce que les marchands d'esclaves pour se soustraire a la recherche peuvent facilement abuser du pavilion Frangais, la possibilite d'un tel abus, qui peut etre entierement supprime par Taccession de toutes les Puissances a Tarticle 42 de TActe de Bruxelles, ne peut exercer aucune influence sur la decision de cette affaire, qui ne doit etre fondee que sur des motifs d'ordre juridique,
THE MUSCAT DHOWS CASE 471
Considerant qu'en vertu des articles 31-41 de PActe de Bruxelles Toctroi du pavilion a un navire indigene est strictement limite a ce navire et a son proprietaire et que des lors il ne peut etre transmis ou trans fere a quelque autre personne ni a quelque autre navire, meme si celui-ci appartenait au meme proprietaire,
Considerant que rarticle 4 du Traite Franco-Mascatais assure aux sujets de Sa Hautesse le Sultan de Mascate "qui seront au service des Frangais" la meme protection qu'aux Frangais eux-memes, mais con- siderant que les proprietaires, commandants et equipages des boutres autorises a arborer le pavilion Frangais n'appartiennent pas a cette categoric de personnes et encore moins les membres de leurs families,
Considerant que le fait de soustraire ces personnes a la souverainete, specialement a la juridiction, de Sa Hautesse le Sultan de Mascate serait en contradiction avec la Declaration du 10 mars 1862, par la- quelle la France et la Grande Bretagne se sont engagees reciproque- ment a respecter 1'independance de ce Prince,
PAR CES MOTIFS, decide et prononce ce qui suit:
1°. les boutres ("dhows") de Mascate qui ont ete autorises, ainsi qu'il a ete indique ci-dessus, a arborer le pavilion Frangais, ont dans les eaux territoriales de Mascate le droit a Tinviolabilite, reglee par le Traite Franco-Mascatais du 17 novembre 1844;
2°. 1'autorisation d'arborer le pavilion Frangais ne peut etre trans- mise ou transferee a quelque autre personne ou a quelque autre boutre ("dhow"), meme si celui-ci appartenait au meme proprietaire;
3°. les sujets du Sultan de Mascate, qui sont proprietaires ou com- mandants de boutres ("dhows") autorises a arborer le pavilion Fran- gais ou qui sont membres des equipages de tels boutres ou qui ap- partiennent a leurs families ne jouissent en consequence de ce fait d'aucun droit d'exterritorialite, qui pourrait les exempter de la souve- rainete, specialement de la juridiction, de Sa Hautesse le Sultan de Mascate.
Fait a La Haye, dans 1'Hotel de la Cour permanente df Arbitrage, le 8 aout 1905.
(Signe) H. LAMMASCH
" MELVILLE W. FULLER
" A. F. DE SAVORNIN LOHMAN
Agreement for Arbitration, October 13, 1904*
Attendu que le Gouvernement Francais et celui de Sa Majeste Britannique ont juge convenable, par la Declaration du 10 mars 1862, "de s'engager reciproquement a respecter Tindependance" de Sa Hautesse le Sultan de Mascate;
1Official report, p 5.
472 ORIGINAL TEXTS
Attendu que des difficultes se sont elevees sur la portee de cette Declaration relativement a la delivrance, par la Republique Frangaise, a certains sujets de Sa Hautesse le Sultan de Mascate de pieces les autorisant a arborer le pavilion Frangais, ainsi qu'au sujet de la nature des privileges et immunites revendiques par les sujets de Sa Hautesse, proprietaires ou commandants de boutres ("dhows") qui sont en possession de semblables pieces ou qui sont membres de 1'equipage de ces boutres et leurs families, particulierement en ce qui concerne le mode suivant lequel ces privileges et ces immunites affectent le droit de juridiction de Sa Hautesse le Sultan sur ses dits sujets :
Les soussignes, dument autorises a cet effet par leurs Gouvernements respecti fs, conviennent, par les presentes, que ces difficultes seront tranchees par voie d'arbitrage conformement a TArticle I de la Con- vention intervenue entre les deux pays, le 14 octobre dernier, et que la decision du Tribunal de La Haye sera definitive.
II est aussi convenu par les presentes de ce qui suit :
ARTICLE I
Chacune des Hautes Parties Contractantes nommera un Arbitre, et ces deux Arbitres ensemble choisiront un Surarbitre; si, dans le delai d'un mois a partir de leur nomination, ils ne peuvent tomber d'accord, le choix d'un Surarbitre sera confie a Sa Majeste le Roi d'ltalie. Les Arbitres et le Surarbitre ne seront pas sujets ou citoyens de Tune ou 1'autre des Hautes Parties Contractantes et seront choisis parmi les membres de la Cour de La Haye.
ARTICLE II
Chacune des Hautes Parties Contractantes devra, dans un delai de trois mois apres la signature du present Compromis, remettre a chaque membre du Tribunal constitue par les presentes, et a 1'autre Partie, un Memoire ecrit ou imprime exposant et motivant sa reclamation et un dossier ecrit ou imprime contenant les documents ou toutes autres pieces probantes ecrites ou imprimees sur lesquelles il s'appuie.
Dans les trois mois de la remise des dits Memoires, chacune des Hautes Parties remettra a chaque membre du Tribunal et a 1'autre Partie un Contre-Memoire ecrit ou imprime, avec les pieces a 1'appui.
Dans le mois de la remise des Contre-Memoires, chaque Partie pourra remettre a chaque Arbitre et a Tautre Partie des conclusions ecrites ou imprimees, a Tappui des propositions qu'elle aurait mises en avant.
Les delais fixes par le present Compromis pour la remise du Memoire, du Contre-Memoire, et des conclusions pourront etre pro- longes d'un commun accord par les Parties Contractantes.
ARTICLE III
Le Tribunal se reunira a La Haye, dans la quinzaine de la remise des Arguments.
Chaque Partie sera representee par un Agent.
THE MUSCAT DHOWS CASE 473
Le Tribunal pourra, s'il juge necessaire de plus amples eclaircisse- ments en ce qui regarde un point quelconque, demander, a chaquc Agent, une explication orale ou par ecrit; mais, en pareil cas, 1'autre Partie aura le droit de repliquer.
ARTICLE IV
La decision du Tribunal sera rendue dans les trente jours qui suivront sa reunion a La Haye ou la remise des explications qui auraient etc fournies a sa demande, a moins que, a la requete du Tribunal, les Parties Contractantes ne conviennent de prolonger le delai.
ARTICLE V
Les dispositions de la Convention de La Haye, du 29 juillet 1899, s'appliqueront a tous les points non prevus par le present Compromis.
Fait, en double exemplaire, a Londres, le 13 octobre 1904.
(L.-S.) PAUL CAMBON (L.-S.) LANSDOWNE
Extract from the Treaty of Friendship and Commerce of November 17, 1844, between France and the Iman of Muscat1
III. Les Frangais auront la faculte d'acheter, de vendre ou de prendre a bail des terres, maisons, magasins, dans les Etats de Son Altesse le Sultan de Mascate. Nul ne pourra, sous aucun pretexte penetrer dans les maisons, magasins et autres proprietes, possedes ou occupes par des Frangais ou par des personnes au service des Frangais, ni les visiter sans le consentement de Toccupant, a moins que ce ne soit avec 1'intervention du Consul de France.
Les Frangais ne pourront, sous aucun pretexte, etre retenus contre leur volante dans les Etats du Sultan de Mascate.
IV. Les sujets de Son Altesse le Sultan de Mascate qui seront au service des Frangais jouiront de la meme protection que les Frangais eux-memes; mais, si les sujets de Son Altesse sont convaincus de quelque crime ou infraction punissable par la loi, ils seront congedies par les Frangais au service desquels 51s se trouverait, et livres aux autorites locales.
Declaration of March ro, 1862, between France and Great Britain re- specting the Independence of the Sultans of Muscat and Zanzibar*
S. M. 1'Empereur des Frangais et S. M. la Reine du Royaume-Uni de la Grande-Bretagne et d'Irlande, prenant en consideration Timpor- tance qui s'attache au maintien de Tindependance du Sultan de Mascate
^British and Foreign State Papers, vol. 35, p. 1011.
2Martens, Nouveau Recueil General de Traties, 3d series, vol. 4, p. 768.
474 ORIGINAL TEXTS
d'une part, et du Sultan de Zanzibar de 1'autre, ont juge convenable de s'engager reciproquement a respecter 1'independance de ces deux Princes.
Les soussignes Ministre des Affairs Etrangeres de S. M. 1'Empereur des Francois et Ambassadeur Extraordinaire de S. M. Britannique pres la Cour de France, etant munis de pouvoirs a cet effet, declarent en consequence, par le present acte, que leurs dites Majestes prennent reciproquement 1'engagement indique ci-dessus.
En foi de quoi, les soussignes ont signe en double la presente decla- ration et y ont appose le cachet de leurs armes.
Fait a Paris, le 10 mars 1862.
E. THOUVENEL COWLEY
Extract from the General Act of Brussels of July 2, 1890, for the Suppression of the African Slave Trade1
SECTION II. REGLEMENT CONCERN A NT I/USAGE DU PAVILLON ET LA SURVEILLANCE DES CROISEURS
1. REGLES POUR LA CONCESSION DU PAVILLON AUX BATIMENTS IN- DIGENES, LE ROLE D'EQUIPAGE, ET LE MANIFESTS DES PASSAGERS NOIRS
XXX. Les Puissances Signataires s'engagent a exercer une sur- veillance rigoureuse sur les batiments indigenes autorises a porter leur pavilion dans la zone indiquee a 1'Article XXI, et sur les operations commerciales effectuees par ces batiments.
XXXI. La qualification de batiment indigene s'applique aux navires qui remplissent une des deux conditions suivantes :
1. Presenter les signes exterieurs d'une construction ou d'un greement indigene.
2. Etre montes par un equipage dont le capitaine et la majorite des matelots soient originates d'un des pays baignes par les eaux de TOcean Indien, de la Mer Rouge, ou du Golfe Persique.
XXXII. L'autorisation d'aborder le pavilion d'une des dites Puis- sances ne sera accordee a 1'avenir qu'aux batiments indigenes qui satis- f eront a la fois aux trois conditions suivantes :
1. Les armateurs ou proprietaires devront etre sujets ou proteges de la Puissance dont ils demandent a porter les couleurs ;
2. Ils serpnt tenus d'etablir qu'ils possedent des biens-fonds dans la circonscription de 1'autorite a qui est adressee leur demande, ou de fournir une caution solvable pour la garantie des amendes qui pour- raient etre eventuellement encourues;
^3. Les dits armateurs ou proprietaires, ainsi que le capitaine du batiment, devront fournir la preuve qu'ils jouissent d'une bonne reputation et notamment n'avoir jamais ete 1'objet d'une condamna- tion pour faits de Traite.
^British and Foreign State Papers, vol. 82, p. 65.
THE MUSCAT DHOWS CASE 475
XXXIII. L'autorisation accordee devra etre renouvelee chaque annee. Elle pourra tou jours etre suspendue ou retiree par les autorites de la Puissance dont le batiment porte les couleurs.
XXXIV. L'acte d'autorisation portera les indications necessaires pour etablir 1'identite du navire. Le capitaine en sera detenteur. Le nom du batiment indigene et I'indication de son tonnage devront etre incrustes et peints en caracteres Latins a la poupe, et la ou les lettres initiales de son port d'attache, ainsi que le numero d'enregistrement dans la serie des numeros de ce port, seront imprimes en noir sur les voiles.
XXXV. Un role d'equipage sera delivre au capitaine du batiment au port de depart par 1'autorite de la Puissance dont il porte le pavilion. II sera renouvele a chaque armement du batiment ou, au plus tard, au bout d'une annee, et conf ormement aux dispositions suivantes :
1. Le role sera, au moment du depart, vise par 1'autorite qui l'a delivre.
2. Aucun noir ne pourra etre engage comme matelot sur un batiment sans qu'il ait etc prealablement interroge par 1'autorite de la Puissance dont ce batiment porte le pavilion, ou, a defaut de celle-ci, par 1'autorite territoriale, a 1'effet d'etablir qu'il contracte un engagement libre.
3. Cette autorite tiendra la main a ce que la proportion des matelots ou mousses ne soit pas anormale par rapport au tonnage ou au greement des batiments.
4. L'autorite qui aura interroge les hommes prealablement a leur depart les inscrira sur le role d'equipage, ou ils figureront avec le signalement sommaire de chacun d'eux en regard de son nom.
5. Afin d'empecher plus surement les substitutions, les matelots pourront, en outre, etre pourvus d'une marque distinctive.
XXXVI. Lorsque le capitaine du batiment desirera embarquer des passagers noirs, il devra en faire la declaration a 1'autorite de la Puis- sance dont il porte le pavilion, ou, a defaut de celle-ci, a 1'autorite terri- toriale. Les passagers seront interroges, et, quand il aura etc constate qu'ils s'embarquent librement, ils seront inscrits sur un manifeste special donnant le signalement de chacun d'eux en regard de son nom, et indiquant notamment le sexe et la taille. Les en f ants noirs ne pour- ront etre admis comme passagers qu'autant qu'ils seront accompagnes de leurs parents ou de personnes dont 1'honorabilite serait notoire. Au depart le manifeste des passagers sera vise par 1'autorite indiquee ci-dessus, apres qu'il aura etc procede a un appel. S'il n'y a pas de passagers a bord, mention expresse en sera faite sur le role d'equipage.
XXXVII. A 1'arrivee dans tout port de relache ou de destination, le capitaine du batiment produira devant l'autorit£ de la Puissance dont il porte le pavilion, ou, a defaut de celle-ci, devant 1'autorite terri- toriale, le role d'equipage et, s'il y a lieu, les manifestes de passagers anterieurement delivres. L'autorite controlera les passagers arrives a destination ou s'arretant dans un port de relache, et fera mention de leur debarquement sur le manifeste. Au depart, la meme autorite apposera de nouveau son visa au role et au manifeste, et fera 1'appel des passagers.
476 ORIGINAL TEXTS
XXXVIII. Sur le littoral Africain et dans les iles adjacentes, aucun passager noir ne sera embarque a bord d'un batiment indigene en dehors des localites ou reside une autorite relevant d'une des Puis- sances Signataires.
Dans toute 1'etendue de la zone prevue a r Article XXI, aucun passager noir ne pourra etre debarque d'un batiment indigene hors d'une localite ou reside une autorite relevant d'une des Hautes Parties Contractantes et sans que cette autorite assiste au debarque- ment.
Les cas de force majeure qui auraient determine 1'infraction a ces dispositions devront etre examines par 1'autorite de la Puissance dont le batiment porte les couleurs, ou, a defaut de celle-ci, par 1'autorite territoriale du port dans lequel le batiment inculpe fait relache.
XXXIX. Les prescriptions des Articles XXXV, XXXVI, XXXVII, et XXXVIII ne sont pas applicables aux bateaux non pontes entiere- ment, ayant un maximum de 10 hommes d'equipage, et qui satisf eront a Tune des deux conditions suivantes :
1. S'adonner exclusivement a la peche dans les eaux territoriales;
2. Se livrer au petit cabotage entre les diff erentes ports de la meme Puissance territoriale, sans s'eloigner de la cote a plus de 5 milles.
Ces differents bateaux recevront, suivant les cas, de I'autorite terri- toriales ou de 1'autorite Consulaire, une licence speciale, renouvelable chaque annee et revocable dans les conditions prevues a 1'Article XL, et dont le modele uni forme, annexe au present Acte General, sera com- munique au Bureau International de Renseignements.
XL. Tout acte ou tentative de Traite, legalement constate a la charge du capitaine, armateur, ou proprietaire d'un batiment autorise a porter le pavilion d'une des Puissances Signataires, ou ayant obtenu la licence prevue a 1' Article XXXIX, entrainera le retrait immediat de cette autorisation ou de cette licence. Toutes les infractions aux prescriptions du paragraphe 2 du Chapitre III seront punies, en outre, des penalites edictees par les Lois et Ordonnances speciales a chacune des Puissances Contractantes.
XLI. Les Puissances Signataires s'engagent a deposer au Bureau International de Renseignements les modeles types des documents ci- apres :
1. Titre autorisant le port du pavilion.
2. Role d'equipage.
3. Manifeste des passagers noirs.
Ces documents, dont la teneur peut varier suiyant les Reglements propres a chaque pays, devront renf ermer obligatoirement les renseigne- ments suivants, libelles dans une langue Europeenne:
1. En ce qui concerne 1'autorisation de porter le pavilion :
(a) Le nom, le tonnage, le greement, et les dimensions principales du batiment ;
(b) Le numero d'inscription et la lettre signaletique du port d'attache ;
(c) La date de 1'obtention du permis et la qualite du fonctionnaire qui 1'a delivre.
THE MUSCAT DHOWS CASE 477
2. En ce qui concerne le role d'equipage :
(a) Le nom du batiment, du capitaine, et de I'armateur ou des pro- prietaires ;
(b) Le tonnage du batiment ;
(c) Le numero description et le port d'attache du navire, sa destination, ainsi que les renseignements specifies a 1'Article XXV.
3. En se qui concerne le manif este des passagers noirs :
Le nom du batiment qui les transporte et les renseignements indiques a T Article XXXVI, et destines a bien identifier les passagers.
Les Puissances Signataires prendront les mesures necessaires pour que les autorites territoriales, ou leurs Consuls, envoient au meme Bureau des copies certifiees de toute autorisation d'arborer leur pavilion, des qu'elle aura ete accordee, ainsi que Tavis du retrait dont ces autorisations auraient ete Tobjet.
Les dispositions du present Article ne concernent que les papiers destines aux batiments indigenes.
Supplementary Agreement of January 13, 7905, to the Agreement for
Arbitration1
La constitution du Tribunal Arbitral institue par le Compromis signe a Londres le 13 Octobre, 1904, ay ant ete retardee de quelques jours par suite de circonstances independantes de la volonte des Hautes Parties Contractantes, le Gouvernement de Sa Ma j este Britannique et le Gouvernement de la Republique Francaise ont juge utile, d'un commun accord, d'user de la faculte qui leur est accordee dans le 4e paragraphe de 1'Article II du dit Compromis de prolonger le delai fixe pour la remise du Memoire.
Us conviennent, en consequence, par les presentes, de fixer au 1** Fevrier la date a laquelle les membres du Tribunal Arbitral et les deux Gouvernements interesses recevront communication du Memoire ou du dossier presente par les Parties.
II est egalement entendu que les delais successifs prevus a TArticle II du Compromis pour la procedure Arbitrale courront du ler Fevrier au lieu du 13 Janvier, date qui resultait des termes de 1* Accord signe le 13 Octobre, 1904, par M. Paul Cambon et Lord Lansdowne.
Fait a Londres, en double exemplaire, le 13 Janvier, 1905.
(L. S.) PAUL CAMBON (L. S.) LANSDOWNE
Supplementary Agreement of May 19, 1905 to the Agreement for
Arbitration*
La constitution du Tribunal Arbitral institue par le Compromis signe a Londres le 13 Octobre, 1904, ayant ete retardee de quelques jours par suite de circonstances independantes de la volonte des
iQfficial report, p. 9. tU, p. 11.
478 ORIGINAL TEXTS
Hautes Parties Contractantes, le Gouvernement de la Republique Frangaise et le Gouvernement de Sa Majeste Britannique ont juge utile, d'un commun accord, d'user de la faculte qui leur est accordee par le quatrieme paragraphe de 1' Article II dudit Compromis de pro- longer le delai fixe pour la remise des Conclusions.
Ils conviennent, en consequence, par les presentes, de laisser au Tribunal Arbitral le soin de fixer la date a laquelle les membres dudit Tribunal et les deux Gouvernements interesses recevront communica- tion des Conclusions presentees par les Parties.
Cet Accord additionnel sera communique au Tribunal Arbitral par les soins du Bureau International de la Cour Permanente d'Arbitrage.
Fait a Londres, en double exemplaire, le 19 Mai, 1905.
(L. S.) PAUL CAMBON (L. S.) LANSDOWNE
THE CASABLANCA CASE
Award of the Tribunal, May 22, /pop1
Considerant que, par un Protocole du 10 novembre 1908 et par un Compromis du 24 du meme mois, le Gouvernement de la Republique franchise et le Gouvernement imperial allemand se sont mis d'accord pour charger un Tribunal arbitral, compose de cinq membres, de resoudre les questions de fait et de droit que soulevent les evenements qui se sont produits a Casablanca, le 25 septembre 1908, entre des agents des deux pays ;
Considerant que, en execution de ce Compromis, les deux Gouverne- ments ont designe respectivement comme Arbitres,
le Gouvernement de la Republique francaise: le tres honorable Sir Edward Fry, Docteur en droit, autrefois siegeant a la Cour d'appel, Membre du Conseil prive du Roi, Membre de la Cour permanente d'Arbitrage, et M. Louis Renault, Membre de 1'Institut de France, Ministre plenipotentiaire, Professeur a la Faculte de droit de Paris, Jurisconsulte du Ministere des Affaires Etrangeres, Membre de la Cour permanente d'Arbitrage ;
et le Gouvernement imperial allemand: M. Guido Fusinato, Doc- teur en droit, ancien Ministre de 1'Instruction publique, ancien Pro- fesseur de droit international a 1'Universite de Turin, Depute au Parlement italien, Conseiller d'Etat, Membre de la Cour permanente d'Arbitrage, et M. Kriege, Docteur en droit, Conseiller actuel intime de Legation, Conseiller rapporteur et Jurisconsulte au Departement des Affaires Etrangeres, Membre de la Cour permanente d'Arbitrage ;
Que les Arbitres ainsi designes charges, de nommer un Surarbitre, ont choisi comme tel M. K. Hj. L. de Hammarskjold, Docteur en droit, ancien Ministre de la Justice, ancien Ministre des Cultes et de 1'Instruction publique, ancien Envoy e extraordinaire et Ministre pleni- potentiaire a Copenhague, ancien President de la Cour d'Appel de Jonkoping, ancien Professeur a la Faculte de droit d'Upsal, Gouverneur de la Province d'Upsal, Membre de la Cour permanente d'Arbitrage;
Considerant que, conformement aux dispositions du Compromis du 24 novembre 1908, les memoires et contre-memoires ont ete dument echanges entre les Parties et communiques aux Arbitres ;
Considerant que le Tribunal, constitue comme il est dit ci-dessus, s'est reuni a La Haye le 1* mai 1909 ;
Que les deux Gouvernements ont respectivement designe comme Agents,
le Gouvernement de la Republique franchise: M. Andre Weiss, Professeur a la Faculte de droit de Paris, Jurisconsulte adjoint du Ministere des Affaires Etrangeres,
1Official report, p. 153.
480 ORIGINAL TEXTS
et le Gouvernement imperial allemand: M. Albrecht Lentze, Doc- teur en droit, Conseiller intime de Legation, Conseiller rapporteur au Departement des Affaires Etrangeres ;
Considerant que les Agents des Parties ont presente au Tribunal les conclusions suivantes:
savoir, 1' Agent du Gouvernement de la Republique f rangaise :
PLAISE AU TRIBUNAL,
Dire et juger que c'est a tort que le Consul et les agents du Consulat imperial allemand a Casablanca ont tente de faire embarquer sur un navire allemand des deserteurs de la Legion etrangere franchise, ne ressortissant pas a la nationalite allemande ;
Dire et juger que c'est a tort que le meme Consul et les memes agents ont, dans les memes conditions, accorde, sur le territoire occupe par le corps de debarquement f rangais a Casablanca, leur protection et leur assistance materielle a trois autres legionnaires, qu'ils croyaient ou qu'ils pouvaient croire Allemands, meconnaissant ainsi les droits exclusifs de juridiction qui appartiennent a 1'Etat occupant, en territoire etranger, meme en pays de Capitulations, au regard des soldats de 1'armee d'occupation, et des actes, quels qu'ils soient et d'ou qu'ils viennent, qui sont de nature a compromettre sa securite;
Dire et juger qu'aucune atteinte n'a etc portee, en la personne de M. Just, chancelier du Consulate imperial a Casablanca, et du soldat marocain Abd-el-Kerim ben Mansour, a 1'inviolabilite consulaire, par les officiers, soldats et marins frangais qui ont procede a 1'arrestation des deserteurs; et qu'en repoussant les attaques et les voies de fait dirigees contre eux, lesdits officiers, soldats et marins se sont bornes a user du droit de legitime defense.
Et 1' Agent du Gouvernement imperial allemand (conclusions tra- duites),
PLAISE AU TRIBUNAL,
1°. En ce qui concerne les questions de fait,
Declarer que trois individus qui avaient anterieurement servi dans la Legion etrangere franchise, Walter Bens, Heinrich Heinemann et Julius Meyer, tous trois Allemands, ont, le 25 septembre 1908, au port de Casablanca, pendant qu'ils etaient accompagnes par des agents de rAllemagne, etc violemment arraches a ces derniers et arretes par des agents de la France ; qu'a cette occasion des agents de I'Allemagne ont ete attaques, maltraites, outrages et menaces par des agents de la France ;
2°. En ce qui concerne les questions de droit,
Declarer que les trois individus mentionnes au No. 1 etaient, au 25 septembre 1908, soumis exclusivement a la juridiction et a la pro- tection du Consulat imperial allemand a Casablanca; que des agents de la France n'etaient pas alors autorises a entraver 1'exercice par des agents de I'Allemagne de la protection allemande sur ces trois individus et a revendiquer de leur cote sur eux un droit de juridiction ;
THE CASABLANCA CASE 481
3°. En ce qui concerne la situation des individus arretes le 25 sep- tembre 1908 au sujet de laquelle il y a contestation,
Decider que le Gouvernement de la Republique frangaise, aussitot que possible, se dessaisira des trois Allemands designes au No. 1 et les mettra a la disposition du Gouvernement allemand.
Considerant que 1'Agent de la Republique frangaise a, dans 1'audi- ence du 17 mai 1909, declare que, dans ses conclusions, il ne s'agit, soit pour les deserteurs de nationalite allemande, soit pour les autres, que des mesures prises par des agents allemands apres la desertion et en vue de faire embarquer les deserteurs ;
Considerant qu'apres que le Tribunal eut entendu les exposes oraux des Agents des Parties et les explications qu'ils lui ont fournies sur sa demande, les debats ont ete declares clos dans 1'audience du 17 mai 1909;
Considerant que, d'apres le regime des Capitulations en vigueur au Maroc, 1'autorite consulaire allemande exerce, en regie generate, une juridiction exclusive sur tous les ressortissants allemands qui se trou- vent dans ce pays ;
Considerant que, d'autre part, un corps d'occupation exerce aussi, en regie generale, une juridiction exclusive sur toutes les personnes appartenant audit corps d'occupation ;
Que ce droit de juridiction doit etre reconnu, tou jours en regie generale, meme dans les pays soumis au regime des Capitulations ;
Considerant que, dans le cas ou des ressortissants (Tune Puissance qui beneficie au Maroc du regime des Capitulations appartiennent au corps d'occupation envoye dans ce pays par une autre Puissance, il se produit, par la force des choses, un conflt entre les deux juridictions sus-indiquees ;
Considerant que le Gouvernement francais n'a pas fait connaitre la composition du corps expeditionnaire et n'a pas declare que le fait de 1'occupation militaire modifiait la juridiction consulaire exclusive decoulant du regime des Capitulations ; que, d'autre part, le Gouverne- ment allemand n'a pas reclame au sujet de Femploi au Maroc de la Legion etrangere qui, notoirement, est, pour une certaine partie, com- posee de ressortissants allemands ;
Considerant qu'il n'appartient pas a ce Tribunal d'emettre une opinion sur 1'organisation de la Legion etrangere ou sur son emploi au Maroc ;
Considerant que le conflit de juridictions dont il a ete parle ne saurait etre decide par une regie absolue qui accorderait d'une maniere generale la preference, soit a 1'une, soit a 1'autre des deux juridictions concurrentes ;
Que, dans chaque cas particulier, il faut tenir compte des circon- stances de fait qui sont de nature a determiner la preference;
Considerant que la juridiction du corps d'occupation doit, en cas de conflit, avoir la preference, lorsque les personnes appartenant a ce corps n'ont pas quitte le territoire place sous la domination immediate, durable et effective de la force armee ;
482 ORIGINAL TEXTS
Considerant qu'a 1'epoque dont il s'agit, la ville fortifiee de Casa- blanca etait militairement occupee et gardee par des forces militaires franchises qui constituaient la garnison de cette ville et se trouvaient, soit dans la ville meme, soit dans les camps environnants ;
Considerant que, dans ces conditions, les deserteurs de nationalite allemande, appartenant aux forces militaires de Tun de ces camps et etant dans 1'enceinte de la ville, restaient soumis a la juridiction mili- taire exclusive;
Considerant, d'autre part, que, la question de la competence re- spective en pays de Capitulations, de la juridiction consulaire et de la juridiction militaire etant tres compliquee et n'ayant pas regu de solu- tion expresse nette et universellement reconnue, 1'autorite consulaire allemande ne saurait encourir aucun blame pour avoir accorde sa pro- tection aux deserteurs susnommes, qui 1'avaient sollicitee ;
Considerant que le Consul allemand a Casablanca n'a pas accorde la protection du Consulat aux deserteurs de nationalite non allemande et que le drogman du Consulat n'a pas non plus depasse a ce sujet les limites de sa competence;
Considerant que le fait que le Consul a signe, sans le lire, le sauf- conduit portant six personnes au lieu de trots et omettant 1'indication de la nationalite allemande, telle qu'il 1'avait lui-meme prescrite, ne peut lui etre impute que comme une f aute non intentionnelle ;
Considerant que le soldat marocain du Consulat, en contribuant a rembarquement des deserteurs, n'a fait qu'agir d'apres les ordres de ses superieurs et que, a raison de sa situation inferieure, aucune respon- sabilite personnelle ne saurait peser sur lui ;
Considerant que le Secretaire du Consulat a intentionnellement chercbe a faire embarquer des deserteurs de nationalite non allemande comme jouissant de la protection du Consulat ;
Qu'a cette fin, il a, de propos delibere, amene le Consul a signer le sauf-conduit mentionne ci-dessus; et que, dans la meme intention, il a pris des mesures tant pour conduire au port que pour faire em- barquer ces deserteurs ;
Qu'en agissant ainsi, il est sorti des limites de sa competence et a commis une violation grave et manifeste de ses devoirs ;
Considerant que les deserteurs de nationalite allemande se scr* trouves au port sous la protection de fait de 1'autorite consulaire alle mande et que cette protection n'etait pas manifestement illegale ;
Considerant que cette situation de fait aurait du, dans la mesure du possible, etre respectee par 1'autorite militaire f rangaise ;
Considerant que les deserteurs de nationalite allemande ont ete arretes par cette autorite malgre les protestations faites au nom du Consulat ;
Considerant que 1'autorite militaire aurait pu et, par consequent, du se borner a empecher 1'embarquement et la fuite de ces deserteurs et, avant de proceder a leur arrestation et a leur emprisonnement, a offrir de les laisser en sequestre au Consulate allemand, jusqu'a ce que la question de la juridiction competente eut ete resolue ;
THE CASABLANCA CASE 483
Que cette maniere de proceder aurait aussi ete de nature a tnain- tenir le prestige de Tautorite consulaire, conformement aux interets communs de tous les Europeens vivant au Maroc ;
Considerant que, meme si Ton admet la legalite de I'arrestation, les circonstances ne justifiaient, de la part de militaires frangais, ni la menace faite a Taide d'un revolver, ni la prolongation des coups pprtes au soldat marocain du Consulat meme apres que sa resistance avait etc brisee ;
Considerant que, quant aux autres outrages ou voies de fait allegues de part et d'autre, Fenchainement et la nature exacte des evenements sont impossibles a etablir ;
Considerant que, conformement a ce qui a ete dit plus haut, les deserteurs de nationalite allemande auraient du etre remis au Con- sulat pour retablir la situation de fait troublee par leur arrestation;
Que cette restitution aurait aussi ete desirable envue de maintenir le prestige consulaire ;
Mais, considerant que, dans 1'etat actuel des choses, ce Tribunal etant appele a determiner la situation definitive des deserteurs, il n'y a plus lieu d'ordonner la remise provisoire et temporaire qui aurait du s'effectuer.
PAR CES MOTIFS,
Le Tribunal arbitral declare et prononce ce qui suit :
Cest a tort et par une faute grave et manifeste que le Secretaire du Consulat imperial allemand a Casablanca a tente de faire embarquer, sur un vapeur allemand, des deserteurs de la Legion etrangere fran- gaise qui n'etaient pas de nationalite allemande.
Le Consul allemand et les autres agents du Consulat ne sont pas responsables de ce chef, toutefois, en signant le sauf-conduit qui lui a ete presente, le Consul a commis une faute non intentionelle.
Le Consulat allemand n'avait pas, dans les conditions de Tespece, le droit d'accorder sa protection aux deserteurs de nationalite allemande ; toutefois, Terreur de droit commise sur ce point par les fonctionnaires du Consulat ne saurait leur etre imputee comme une faute, soit inten- tionelle, soit non intentionnelle.
Cest a tort que les autorites militaires franchises n'ont pas, dans la mesure du possible, respecte la protection de fait exercee sur ces deserteurs au nom du Consulat allemand.
Meme abstraction faite du devoir de respecter la protection con- sulaire, les circonstances ne justifiaient, de la part de militaires frangais, ni la menace faite a Taide d'un revolver, ni la prolongation des coups donnes au soldat marocain du Consulat.
II n'y a pas lieu de donner suite aux autres reclamations contenues dans les conclusions des deux Parties.
Fait a La Haye, dans THotel de la Cour permanente d* Arbitrage, le 22 mai 1909.
Le President: Hj. L. HAMMARSKJOLD Le Secretaire general: MICHIELS VAN VERDUYNEN
484 ORIGINAL TEXTS
Agreement for Arbitration, November 24, ipoS1
Le Gouvernement de la Republique Franchise et le Gouvernement Imperial Allemand s'etant mis d'accord, le 10 novembre 1908, pour soumettre a Parbitrage 1'ensemble des questions soulevees par les evenements qui se sont produits a Casablanca, le 25 septembre dernier, les soussignes, dument autorises a cet effet, sont convenus du compro- mis suivant:
Art. 1. Un Tribunal arbitral, constitue comme il est dit ci-apres, est charge de resoudre les questions de fait et de droit que soulevent les evenements qui se sont produits a Casablanca, le 25 septembre dernier, entre les agents des deux pays.
2. Le tribunal arbitral sera compose de cinq arbitres pris parmi les membres de la Cour permanente d'Arbitrage de La Haye.
Chaque Gouvernement, aussitot que possible et dans un delai qui n'excedera pas quinze jours a parti r de la date du present compromis, choisira deux arbitres dont un seul pourra etre son national. Les quatre arbitres ainsi designes choisiront un surarbitre dans la quinzaine du jour ou leur designation leur aura ete notifiee.
3. Le ler fevrier 1909, chaque partie rcmettra au Bureau de la Cour permanente dix-huit exemplaires de son Memoire avec les copies cer- tifiees conformes de toutes pieces et documents qu'elle compte invo- quer dans la cause. Le Bureau en assurera sans retard la transmission aux arbitres et aux parties, savoir, de deux exemplaires pour chaque arbitre, de trois exemplaires pour chaque partie. Deux exemplaires resteront dans les archives du Bureau. Le 1" avril 1909, les parties deposeront dans la meme forme leurs contre-Memoires avec les pieces a 1'appui de leurs conclusions finales.
4. Chaque partie devra deposer au Bureau International, au plus tard le 15 avril 1909, la somme de 3,000 florins neerlandais, a titre d'avance pour les frais du litige.
5. Le tribunal se reunira a La Haye le ler mai 1909 et procedera im- mediatement a Texamen du litige. II aura la facult6 de se transporter momentanement ou de deleguer un ou plusieurs de ses membres pour se transporter en tel lieu qu'il lui semblerait utile, en vue de proceder a des mesures d'information dans les conditions de Tarticle XX de la Convention du 18 octobre 1907, pour le reglement pacifique des con- flits internationaux.
6. Les parties peuvent f aire usage de la langue f rangaise ou de la langue allemande. Les membres de tribunal peuvent se servir, a leur choix, de la langue franchise ou de la langue allemande. Les decisions du Tribunal seront redigees dans les deux langues.
7. Chaque partie sera represented par un agent special avec mission de servir d'intermediaire entre elle et le Tribunal. Ces agents don- neront les eclaircissements qui leur seront demandes par le Tribunal et pourront presenter les moyens qu'ils jugeraient utiles a la defense de leur cause.
^British and Foreign State Papers, vol. 102, p. 916.
THE CASABLANCA CASE 485
8. Pour tout ce qui n'est pas prevu par le present compromis, les stipulations de la Convention precitee du 18 octobre 1907, dont la ratification n'a pas encoure eu lieu, mais qui a etc signee egalement par la France et I'Allemagne, seront applicables au present arbitrage.
9. Apres que le Tribunal arbitral aura resolu les questions de fait et de droit qui lui sont soumises, il reglera en consequence la situation des individus arretes le 25 septembre dernier au sujet de laquelle il y a contestation.
Fait en double a Berlin, le 24 novembre 1908.
(L. S.) JULES CAMBON (L. S.) KIDERLEN
Protocol of November 10, 1908, between France and Germany con- taining a Formula of Regrets for Events which occurred at Casa- blanca on the 2$th September,
Les deux Gouvernements, regrettant les evenements qui se sont pro- duits a Casablanca le 25 septembre dernier et qui ont amene des agents subalternes a des violences et a de facheuses voies de fait, decident de soumettre 1'ensemble des questions soulevees a ce sujet a 1'arbitrage.
D'un commun accord, chacun des deux Gouvernements s'engage a exprimer ses regrets sur les actes de ces agents, suivant le jugement que les arbitres auront porte sur les faits et sur la question de droit.
Berlin, le 10 novembre, 1908.
JULES CAMBON KIDERLEN
Proems-verbal of Regrets of May 39, jpop2
Le Gouvernement de la Republique et le Gouvernement Imperial etant convenus, le 10 novembre dernier, de soumettre 1'ensemble des questions soulevees par les evenements qui se sont produits a Casa- blanca, le 25 septembre precedent, a un tribunal arbitral convoque«d cet effet, et les deux Gouvernements s'etant engages a s'exprimer mu- tuellement des regrets sur les actes de leurs agents, suivant le jugement que les arbitres auraient porte sur les faits et sur la question de droit; et le Tribunal arbitral ayant, a La Haye, le 22 mai, 1909, declare et prononce ce qui suit:
"Cest a tort et par une faute grave et manifeste que le secretaire du consulat Imperial allemand a Casablanca a tente de faire embarquer sur un vapeur allemand des deserteurs de la Legion etrangere fran- caise, qui n'etaient pas de nationalite allemande. Le consul allemand et les autres agents du consulat ne sont pas responsables de ce chef; toutefois, en signant le sauf-conduit qui lui a ete presente, le consul a
^British and Foreign State Papers, vol 102, p. 916. , p. 602.
486 ORIGINAL TEXTS
commis une f aute non intentionnelle. Le consulat allemand n'avait pas, dans les conditions de Tespece, le droit d'accorder sa protection, aux deserteurs de nationalite allemande; toutfois, 1'erreur de droit com- mise sur ce point par les fonctionnaires du consulat ne saurait leur etre imputee comme une faute, soit intentionnelle, soit non intention- nelle. C'est a tort que les autorites militaires franchises n'ont pas, dans la mesure du possible, respecte la protection de fait exercee sur ces deserteurs au nom du consulat allemand. Meme abstraction faite du devoir de respecter la protection consulaire, les circonstances ne justifiaient, de la part de militaires f rancais, ni la menace faite a Taide d'un revolver, ni la prolongation des coups donnes au soldat marocain du consulat. II n'y a pas lieu de donner suite aux autres reclamations contenues dans les reclamations des deux parties."
Le Gouvernement de la Republique franchise et le Gouvernement Imperial d'Allemagne declarent, chacun en ce qui le concerne, ex- primer les regrets que component les actes releves a la charge de leurs agents par la decision arbitrate.
Fait a Berlin, en deux exemplaires, le 29 mai, 1909.
VON SCHOEN
BARON DE BERCKHEIM
THE GRISBADARNA CASE
Award of the Tribunal, October 23, /pop1
Considerant que, par une Convention du 14 mars 1908, la Norvege et la Suede se sont mises d'accord pour soumettre a la decision defini- tive d'un Tribunal arbitral, compose d'un President qui ne sera ni sujet d'aucune des Parties contractantes ni domicilie dans 1'un des deux pays, et de deux autres Membres, dont Tun sera Norvegien et 1'autre Suedois, la question de la frontiere maritime entre la Norvege et la Suede, en tant que cette frontiere n'a pas etc reglee par la Resolution Royale du 15 mars 1904;
Considerant que, en execution de cette Convention, les deux Gouvernements ont designee respectivement comme President et Arbitres :
Monsieur J. A. Loeff, Docteur en droit et en sciences politiques ancien Ministre de la Justice, Membre de la Seconde Chambre des Etats-Generaux des Pays-Bas;
Monsieur F. V. N. Beichmann, President de la Cour d'appel de Trondhjem, et
Monsieur K. Hj. L. de Hammarskjold, Docteur en droit, ancien Ministre de la Justice, ancien Ministre des Cultes et de 1'Instruction publique, ancien Envoye extraordinaire et Ministre plenipptentiaire a Copenhague, ancien President de la Cour d'appel de Jonkoping, ancien Professeur a la Faculte de droit d'Upsal, Gouverneur de la Province d'Upsal, Membre de la Cour permanente d* Arbitrage;
Considerant que, conformement aux dispositions de la Convention, les Memoires, Contre-Memoires et Repliques ont etc dument echanges entre les Parties et communiques aux Arbitres dans les delais fixes par le President du Tribunal;
Que les deux Gouvernements ont respectivement designe comme Agents,
le Gouvernement de la Norvege : Monsieur Kristen Johanssen, Avo- cat a la Cour supreme de Norvege,
et le Gouvernement de la Suede: Monsieur C. O. Montan, ancien Membre de la Cour d'appel de Svea, Juge au Tribunal mixte d'Alexandrie ;
Considerant qu'il a etc convenu, par 1'article II de la Convention:
1°. que le Tribunal arbitral determinera la ligne frontiere dans les eaux a partir du point indique sous XVIII sur la carte annexee au projet des Commissaires norvegiens et suedois du 18 aout 1897, dans la mer jusqu'a la limite des eaux territoriales ;
1Official report, tn fine.
488 ORIGINAL TEXTS
2°. que les lignes limitant la zone, qui peut etre Tobjet du litige par suite des conclusions des Parties et dans la quelle la ligne f rontiere sera par consequent etablie, ne doivent pas etre tracees de fagon a comprendre ni des iles, ni des ilots, ni des recifs, qui ne sont pas constamment sous 1'eau;
Considerant qu'il a etc egalement convenu, par Particle III de ladite Convention :
1°. que le Tribunal arbitral aura a decider si la ligne f rontiere doit etre consideree, soit entierement soit en partie, comme fixee par le Traite de delimitation de 1661 avec la carte y annexee et de quelle maniere la ligne ainsi etablie doit etre tracee;
2°. que, pour autant que la ligne frontiere ne sera pas consideree comme fixee par ce traite et cette carte, le Tribunal aura a fixer cette ligne frontiere entenant compte des circonstances de fait et des prin- cipes du droit international;
Considerant que les Agents des Parties ont presente au Tribunal les Conclusions suivantes (conclusions traduites),
PAgent du Gouvernement Norvegien:
que la frontiere entre la Norvege et la Suede, dans la zone qui forme 1'objet de la decision arbitrate, soit determinee en conformite avec la ligne indiquee sur la carte, annexee sous numero 35 au Memoire pre- sente au nom du Gouvernement Norvegien ;
et 1' Agent du Gouvernement Suedois:
I. en ce qui concerne la question preliminaire :
Plaise au Tribunal arbitral de declarer, que la ligne de frontiere litigieuse, quant a 1'espace entre le point XVIII deja fixe sur la carte des Commissaires de Tannee 1897 et le point A sur la carte du Traite de frontiere de 1'annee 1661, n'est etablie qu'incompletement par ledit traite et la carte du traite, en tant que la situation exacte de ce point-ci n'en ressort pas clairement, et, en ce qui regarde le reste de 1'espace, s'etendant vers Pouest a parti r du meme point A jusqu'a la limite territoriale, que la ligne de frontiere n'a pas du tout ete etablie par ces documents ;
II. en ce qui concerne la question principale:
1. Plaise au Tribunal de vouloir bien, en se laissant diriger par le Traite et la carte de 1'annee 1661, et en tenant compte des circon- stances de fait et des principes du droit des gens, determiner la ligne de frontiere maritime litigieuse entre la Suede et la Norvege a partir du point XVIII, deja fixe, de telle fagon, que d'abord la ligne de frontiere soit tracee en ligne droite jusqu'a un point qui forme le point de milieu d'une ligne droite, reliant le recif le plus septentrional des Roskaren, faisant partie des iles de Koster, c'est-a-dire celui indique sur la table 5 du Rapport de Tannee 1906 comme entoure des chiffres de profondeur 9, 10 et 10, et le recif qui est le plus meridional des Svartskjar, faisant partie des iles de Tisler, et qui est muni d'une balise, point indique sur la meme table 5 comme point XIX ;
2. Plaise au Tribunal de vouloir bien en outre, en tenant compte des circonstances de fait et des principes du droit des gens, etablir le reste de la frontiere litigieuse de telle fagon, que
THE GRISBADARNA CASE 489
a. a partir du point fixe selon les conclusions sub 1 et designe comme point XIX, la hgne de frontiere soit tracee en ligne droite jusqu'a un point situe au milieu d'une ligne droite, reliant le recif le plus septen- trional des recif s indiques par le nom Stora Drammen, du cote suedois, et le rocher Hejeknub situe au sud-est de Tile Heja, du cote norvegien, point indique sur ladite table 5 comme point XX, et
b. a partir du point nomme en dernier lieu, la frontiere soit tracee en ligne droite vers le vrai ouest aussi loin dans la mer que les terri- toires maritimes des deux Etats sont censes s'etendre;
Considerant que la ligne mentionnee dans les conclusions de 1'Agent Norvegien est tracee comme suit:
du point XVIII indique sur la carte des Commissaires de 1897 en ligne droite jusqu'a un point XIX situe au milieu d'une ligne tiree entre le recif le plus meridional des Svartskjar — celui qui est muni d'une balise — et le recif le plus septentrional des Roskaren,
de ce point XIX en ligne droite jusqu'a un point XX situe au milieu d'une ligne tiree entre le recif le plus meridional des Heiefluer (sondre Heieflu) et le recif le plus septentrional des recifs compris sous la denomination de Stora Drammen,
de ce point XX jusqu'a un point XXa en suivant la perpendiculaire tiree au milieu de la ligne nominee en dernier lieu,
de ce point XXa jusqu'a un point XXfc en suivant la perpendiculaire tiree au milieu d'une ligne reliant ledit recif le plus meridional des Heiefluer au recif le plus meridional des recifs compris sous la de- nomination de Stora Drammen,
de ce point XXfc jusqu'a un point KXc en suivant la perpendiculaire tiree au milieu d'une ligne reliant le sondre Heieflu au petit recif situe au Nord dc Pilot Klofningen pres de Morholmen,
de ce point XXc jusqu'a un point KXd en suivant la perpendiculaire tiree au milieu d'une ligne reliant le midtre Heieflu au dit recif au Nord de Pilot Klofningen,
de ce point XXrf en suivant la perpendiculaire tiree au milieu de la ligne reliant le midtre Heieflu a un petit recif situe a POuest du dit Klofningen jusqu'a un point XXI ou se croisent les cercles tires avec un rayon de 4 milles marins (a 60 au degre) autor des dits recifs,
Considerant, qu'apres que le Tribunal eut visite la zone litigieuse, examine les documents et les cartes qui lui ont ete presentes, et entendu les plaidoyers et les repliques ainsi que les explications qui lui ont ete fournies sur sa demande, les debats ont ete declares clos dans la seance du 18 octobre 1909 ;
Considerant, en ce qui concerne Pinterpretation de certaines expres- sions dont s'est servi la Convention et sur lesquelles les deux Parties, au cours des debats, ont emis des opinions differentes,
Que — en premier lieu — le Tribunal est d'avis, que la clause d'apres laquelle il determinera la ligne frontiere dans la mer jusqu'a la limite des eaux territoriales n'a d'atitre but que d'exclure Peventualite d'une determination incomplete, qui, dans Povenir, pourrait etre cause d'un nouveau litige de frontiere ;
490 ORIGINAL TEXTS
que, de toute evidence, il a ete absolument etranger aux intentions des Parties de fixer d'avance le point final de la frontiere, de sorte que le Tribunal n'aurait qu'a determiner la direction entre deux points donnes ;
Que — en second lieu — la clause, d'apres laquelle les lignes, limitant la zone, qui peut etre Fob jet du litige par suite des conclusions des Parties, ne dowent pas etre tracees de fafon & comprendre, ni des iles, ni des ilots, ni des recifs, qui ne sont pas constamment sous I'eau ne saurait etre interpretee de maniere a impliquer, que les iles, ilots et recifs susindiques devraient etre pris necessairement comme points de depart pour la determination de la f rontiere;
Considerant done que, sous les deux rapports susmentionnes, le Tribunal conserve toute sa liberte de statuer sur la f rontiere dans les bornes des pretentious respectives;
Considerant, que d'apres les termes de la Convention, la tache du Tribunal consiste a determiner la ligne frontiere dans les eaux a partir du point indique sous XVIII, sur la carte annexee au projet des Commissaires Norvegiens et Suedois du 18 aout 1897, dans ia mer, jusqu'a la limite des eaux territoriales ;
Considerant, quant a la question "si la ligne frontiere doit etre consideree, soit entierement soit en partie, comme fixee par le Traite de delimitation de 1661 avec la carte y annexee,"
que la reponse a cette question doit etre negative, du moins en ce qui concerne la ligne frontiere au dela du point A sur la carte susin- diquee;
Considerant que la situation exacte, que le point A occupe sur cette carte ne peut etre precisee d'une maniere absolue, mais que, en tout cas, il correspond a un point situe entre le point XIX et le point XX, comme ces deux points seront fixes ci-apres;
Considerant que les Parties en litige sont d'accord en ce qui concerne la ligne frontiere du point indique sous XVIII sur la carte du 18 aout 1897 jusqu'au point indique sous XIX dans les conclusions suedoises ;
Considerant que, en ce qui concerne la ligne frontiere du dit point XIX jusqu'a un point indique sous XX sur des cartes annex ees aux memoires, les Parties sont egalement d'accord, sauf la seule difference dependant de la question de savoir si, pour determiner le point XX, il faut prendre les Heiefluer ou bien le Heieknub comme point de depart du cote norvegien;
Considerant, a ce sujet,
que les Parties ont adopte, en pratique du moins, le principe du par- tage par la ligne mediane, tiree entre les iles, ilots et recifs, situes des deux cotes et n'etant pas constamment submerges, comme ayant ete, a leur avis, le principe qui avait ete applique en deca du point A, par le Traite de 1661 ;
qu'une adoption de principe inspiree par de pareils motifs — abstrac- tion faite de la question, si le principe invoque a ete reellement ap- plique par ledit traite — doit avoir pour consequence logique que, en
THE GRISBADARNA CASE 491
1'appliquant de nos jours, on tienne compte en meme temps des cir- constances de fait ayant existe a 1'epoque du traite;
Considerant que les Heiefluer sont des recifs dont, a un degre suffi- sant de certitude, on peut pretendre que, au temps du traite de delimi- tation de 1661, ils n'emergeaient pas de 1'eau,
que, par consequent, a cette epoque la ils n'auraient pu servir comme point de depart pour une delimitation de frontiere;
Considerant done que, au point de vue mentionne plus haut, le Heieknub doit etre prefere aux Heiefluer;
Considerant que le point XX etant fixe, il reste a determiner la ligne frontiere a partir de ce point XX jusqu'a la limite des eaux territoriales ;
Considerant que le point XX est situe, sans aucun doute, au dela du point A, indique sur la carte annexee au Traite de delimitation de 1661;
Considerant que la Norvege a soutenu la these, qui du reste n'a pas etc rejetee par la Suede, que par le seul fait de la paix de Roskilde en 1658 le territoire maritime dont il s'agit a ete partage automatique- ment entre Elle et la Suede;
Considerant que le Tribunal se rallie completement a cette opinion;
Considerant que cette opinion est conforme aux principes fonda- mentaux du droit des gens, tant ancien que moderne, d'apres lesquels le territoire maritime est une dependance necessaire d'un territoire terrestre, ce dont il suit, qu'au moment que, en 1658, le territoire terrestre nomme le Bohuslan fut cede a la Suede, le rayon de terri- toire maritime formant la dependance inseparable de ce territoire terrestre dut faire automatiquement partie de cette cession;
Considerant que de ce raisonnement il resulte, que, pour constater quelle peut avoir ete la ligne automatique de division de 1658, il faut avoir recours aux principes de droit en vigueur a cette epoque;
Considerant que la Norvege pretend, que, en dega de la ligne Koster- Tisler le principe des documents de frontiere de 1661 ayant ete que la frontiere devrait suivre la ligne mediane entre les lies, ilots et recifs des deux cotes, le meme principe doit etre applique quant a la frontiere au dela de cette ligne;
Considerant qu'il n'est pas etabli, que la ligne de frontiere deter- minee par le traite et tracee sur la carte de delimitation ait ete basee sur ce principe ;
qu'il y a des details et des particularites dans la ligne suivie, qui font meme surgir des doutes serieux a ce sujet;
que, meme si Ton admettait pour la ligne de frontiere determinee par le traite, Texistence de ce principe, il ne s'ensuivrait pas que le meme principe aurait du etre applique pour la determination de la frontiere dans le territoire exterieur;
Considerant, a ce sujet,
que le Traite de delimitation de 1661 et la carte de ce traite font commencer la ligne de frontiere entre les iles de Koster et de Tisler;
que, en determinant la ligne de frontiere, on est alle dans la direc- tion de la mer vers la cote et non de la cote vers la mer;
492 ORIGINAL TEXTS
que Ton ne saurait done meme parler (Tune continuation possible de cette ligne de frontiere dans la direction vers le large;
que, par consequent, le trait-d'union manque pour pouvoir presumer, sans preuve decisive, 1'application simultanee du meme principe aux territoires situes en dega et a ceux situes au dela de la ligne Koster- Tisler;
Considerant en outre,
que ni le traite de delimitation, ni la carte y appartenant ne font mention d'iles, ilots ou recifs situes au dela de la ligne Koster-Tisler ;
que done, pour rester dans les intentions probable de ces documents, il faut faire abstraction de tels iles, ilots et recifs;
Considerant en plus,
que le territoire maritime, correspondant a une zone d'une certaine largeur, presente de nombreuses particularites qui le distinguent du territoire terrestre et des espaces maritimes plus ou moins complete- ment environnes de ces territoires;
Considerant au meme sujet encore,
que les regies sur le territoire maritime ne sauraient servir de direc- tives pour la determination de la frontiere entre deux pays limitrophes, d'autant moins qu'il s'agit dans 1'espece de la determination d'une frontiere, qui doit s'etre automatiquement tracee en 1658, tandis que les regies invoquees datent de siecles posterieurs;
qu'il en est de meme pour les regies du droit interne Norvegien, concernant la delimitation soit entre les proprietes privees, soit entre les unites administratives ;
Considerant que, par tous ces motifs, on ne saurait adopter la methode d'apres laquelle la Norvege a propose de determiner la fron- tiere du point XX jusqu'a la limite territorial ;
Considerant que le principe d'une ligne mediane a tirer au milieu des terres habitees ne trouve pas d'appui suffisant dans le droit des gens en vigueur au XVII6 siecle;
Considerant qu'il en est de meme pour le principe du thalweg ou du chenal le plus important, principe dont 1'application a 1'espece ne se trouve pas non plus etablie par les documents invoques a cet effet ;
Considerant que Ton est bien plus en concordance avec les idees da XVII6 siecle et avec les notions de droit en vigueur a cette epoque en admettant que la division automatique du territoire en question a du s'effectuer d'apres la direction generale du territoire terrestre duquel le territoire maritime formait une appartenance et, en appliquant par consequent, pour arriver a une determination legitime et justifiee de la frontiere, de nos jours ce meme principe;
Considerant que, par suite, la ligne automatique de part age de 1658 doit etre determinee, ou — ce qui en d'autres termes est exactement la meme chose — le partage d'aujourd'hui doit etre fait en tragant une ligne perpendiculairement a la direction generale de la cote, tout en tenant compte de la necessite d'indiquer la frontiere d'une maniere claire et indubitable et d'en faciliter, autant que possible, 1'observation de la part des interesses ;
THE GRISBADARNA CASE 493
Considerant que, pour savoir quelle est cette direction, il faut, d'une maniere egale, tenir compte de la direction de la cote situee des deux cotes de la frontiere;
Considerant que la direction generate de la cote, d'apres 1'expertise consciencieuse du Tribunal, decline du vrai Nord d'environ 20 degres vers TOuest;
que, par consequent, la ligne perpendiculaire doit se diriger vers TOuest, a environ 20 degres au Sud;
Considerant que les Parties sont d'accord a reconnaitre le grand in- convenient qu'il y aurait a tracer la ligne frontiere a travers des banes importants ;
qu'une ligne de frontiere, tracee du point XX dans la direction de TOuest, a 19 degres au Sud, eviterait completement cet inconvenient puisqu'elle passerait juste au Nord des Grisbadarna et au Sud des Skjottegrunde et qu'elle no couperait non plus aucun autre bane important ;
que, par consequent, la ligne frontiere doit etre tracee du point XX dans la direction de 1'Ouest, a 19 degres au Sud, de maniere qu'elle passe au milieu des banes Grisbadarna d'un cote et des banes Skjottegrunde de 1'autre;
Considerant que, bien que les Parties n'aient pas indique de marques d'alignement pour une ligne de frontiere ainsi tracee, il y a lieu de croire que ce ne soit pas impossible d'en trouver ;
Considerant d'autre part que, le cas echeant, on pourrait avoir recours a d'autres methodes connues de marquer la frontiere;
Considerant qu'une demarcation qui attribue les Grisbadarna a la Suede se trouve appuyee par Tensemble de plusieurs circonstances de fait, qui ont ete relevees aux cours des debats, et dont les principales sont les suivantes:
a. la circonstance que la peche aux homards aux basfonds de Gris- badarna a etc exercee depuis un temps bien plus recule, dans une bien plus large mesure et avec un bien plus grand nombre de pecheurs par les ressortissants de la Suede que par ceux de la Norvege;
b. la circonstance que la Suede a affectue dans les parages de Gris- badarna, surtout dans les derniers temps, des actes multiples emanes de sa conviction que ces parages etaient suedois, comme, par exemple, le balisage, le mesurage de la mer et 1'installation d'un bateau-phare, lesquels actes en trainaient des frais considerables et par lesquels elle ne croyait pas seulement exercer un droit mais bien plus encore accomplir un devoir; tandis que la Norvege, de son propre aveu, sous ces divers rapports s'est soucie bien moins ou presque pas du tout de ces parages ;
Considerant, en ce qui concerne la circonstance de fait mentionnee sous a,
que, dans le droit des gens, c'est un principe bien etabli, qu'il faut s'abstenir autant que possible de modifier 1'etat des choses existant de fait et depuis longtemps;
que ce principe trouve une application toute particuliere lorsqu'il
494 ORIGINAL TEXTS
s'agit d'interets prives, qui, une fois mis en souffrance, ne sauraient etre sauvegardes d'une maniere efficace meme par des sacrifices quel- conques de 1'Etat, auquel appartiennent les interesses;
que c'est la peche aux homards, qui, aux banes de Grisbadarna est de beaucoup la plus importante et que c'est surtout cette peche qui donne aux banes leur valeur, comme place de peche;
que, sans conteste, les Suedois ont etc les premiers a pecher aux homards a 1'aide des engins et des embarcations necessaires pour Texercice de la peche aussi loin dans la mer que sont situes les banes en question;
que la peche en general a plus d'importance pour les habitantes de Koster que pour ceux de Hvaler et que, au moins jusqu'a un temps assez peu recule, ceux-ci se sont adonnes plutot a la navigation qu'a la peche;
que de ces diverses circonstances il ressort deja avec une probabilite equivalente a un haut degre de certitude, que les Suedois ont, beaucoup plus tot et d'une maniere beaucoup plus efficace que les Norvegiens, exploite les banes en question;
que les depositions et les declarations des temoins sont en general en pleine concordance avec cette conclusion ;
que, egalement, la Convention d'arbitrage est en pleine concordance avec la meme conclusion ;
que, d'apres cette convention, il existe une certaine connexite entre la jouissance de la peche des Grisbadarna et 1'entretien du bateau- phare et que, la Suede etant obligee d'entretenir le bateau-phare aussi longtemps que continuera 1'etat actuel, cela demontre que, d'apres les raisons de cette clause, la jouissance principale en revient aujourd'hui a la Suede;
Considerant, en ce qui concerne les circonstances de fait, mentionnes sous b,
Quant au balisage et au stationnement d'un bateau-phare,
que le stationnement d'un bateau-phare, necessaire a la securite de la navigation dans les parages de Grisbadarna, a etc eff ectue par la Suede sans rencontrer de protestation et sur Tinitiative meme de la Norvege et que, egalement, Tetablissement d'un assez grand nombre de balises y a etc opere sans soulever des protestations;
que ce bateau-phare et ces balises sont maintenus tou jours par les soins et aux f rais de la Suede ;
que la Norvege n'a pris de mesures en quelque maniere correspon- dantes qu'en y plagant a une epoque posterieure au balisage et pour un court laps de temps une bouee sonore, dont les frais d'etablissement et d'entretien ne pourraient meme etre compares a ceux du balisage et du bateau-phare ;
que de ce qui precede ressort que la Suede n'a pas doute de son droit aux Grisbadarna et qu'Elle n'a pas hesite d'encourir les frais incom- bant au proprietaire et possesseur de ces banes j usque meme a un montant tres-considerable ;
Quant aux mesurages de mer,
THE GRISBADARNA CASE 495
que la Suede a precede la premiere et une trentaine d'annees avant le commencement de toute contestation, a des niesurages exacts, la- borieux et couteux des parages de Grisbadarna, tandis que les mesu- rages faits quelques annees plus tard par les soins de la Norvege n'ont meme pas atteint les limites des mesurages Suedois;
Considerant done qu'il n'est pas douteux du tout que Tattribution des banes de Grisbadarna a la Suede est en parfaite concordance avec les circonstances les plus importantes de fait;
Considerant, qu'une demarcation qui attribues les Skjottegrunde — la partie la moins importante du territoire litigieux — a la Norvege se trouve suffisamment appuyee, de son cote, par la circonstance de fait serieuse que, quoiqu'on doive conclure des divers documents et te- moignages, que les pecheurs, Suedois — comme il a etc dit plus haut — ont exerce la peche dans les parages en litige depuis un temps plus recule, dans une plus large mesure et en plus grand nombre, il est certain d'autre part que les pecheurs Norvegiens n'y ont ete jamais exclus de la peche;
que, en outre, il est avere qu'aux Skjottegrunde, les pecheurs Nor- vegiens ont presque de tout temps, et d'une maniere relativement bien plus efficace qu'aux Grisbadarna, pris part a la peche aux homards.
PAR CES MOTIFS
Le Tribunal decide et prononce:
Que la frontiere maritime entre la Norvege et la Suede, entant qu'elle n'a pas ete reglee par la Resolution royale du 15 mars 1904 est determinee comme suit :
du point XVIII, situe comme il est indique sur la carte annexee an projet des commissaires Norvegiens et Suedois du 18 aout 1897, une ligne droite est tracee au point XIX, formant le point de milieu d'une ligne droite tiree du recif le plus septentrional des Roskaren au recif le plus meridional des Svartskjar, celui qui est muni d'une balise,
du point XIX ainsi fixe une ligne droite est tracee au point XX, formant le point de milieu d'une ligne droite tiree du recif le plus septentrional du groupe des recif s Stora Drammen au recif le Hejcknub situe au Sud-est de Tile Heja,
du point XX une ligne droite est tracee dans une direction Quest, 19 degres au Sud, laquelle ligne passe au milieu entre les Grisbadarna et le Skjottegrund Sud et se prolonge dans la meme direction jusqu'a ce qu'elle aura atteint la mer libre.
Fait a La Haye, le 23 octobre 1909 dans THotel de la Cour perma- nente d'arbitrage.
Le President: J. A. LOEFF
Le Secretaire geticral: MICIIIELS VAN VERDUYNEN Le Secretaire: ROELL
496
ORIGINAL TEXTS
Agreement for Arbitration, March 14,
Hans Majestat Konungen af Sverige och bans Majestat Kon- ungen af Norge, som funnit, att fragan om sjogransen mellan Sverige och Norge, i den man derma grans icke redan blifvit bestamd genom kungl. beslutet den 15 mars 1904, bor hanskjutas till skiljedom, hafva for detta andamal till Sina fullmaktige utsett :
Hans Majestat Konungen af Sverige :
Sin minister for utrikes aren- dena Eric Birger Trolle;
Hans Majestat Konungen af Norge :
Sin envoye extraordinaire och ministre plenipotentiare Paul Benjamin Vogt,
hvilka, efter att hafva med- delat hvarandra sina fullmakter, som befunnits i god och behorig form, ofverenskommit om fol- jande bestammelser :
ART. 1
Parterna forbinda sig att i nedan angifna omfang ofver- lamna fragan om sjogransen mellan Sverige och Norge till slutligt afgorande genom en skiljedomstol, bestaende af en ordforande, som icke ar nagon- dera partens undersate eller bosatt i nagotdera landet, samt af tva andra ledamoter, en svensk och en norsk.
Ordforanden utses af Hennes Majestat Drottningen af Neder- landerna, de ofriga ledamoterna en af hvardera parten. Parterna forbehalla sig dock att, i handelse de darom kunna enas, genom en sarskild ofverenskommelse utse
Hans Majestaet Kongen av Sverige og Hans Majestaet Kon- gen av Norge, som bar fundet, at sporsmaalet om sjograensen mellem Sverige och Norge i den utstraekning, hvori den ikke er blevet bestemt ved resolution av 15 mars 1904, bor henskytes til avgjorelse ved voldgift, bar i dette oiemed opnaevnt som sine befuldmaegtigede :
Hans Majestaet Kongen av Sverige :
Sin minister for de utenrikske anliggender, Eric Birger Trolle;
Hans Majestaet Kongen av Norge :
Sin overordentlige utsending og befuldmaegtigede minister i Stockholm Paul Benjamin Vogt,
hvilke, efter at ha meddelt hi- nanden sine fuldmagter, som fandtes i god og behorig form, er kommet overens om folgende artikler :
ART. 1
Parterne forpligter sig til i den nedenfor angivne utstraekning at undergi sporsmaalet om sjograen- sen mellen Sverige og Norge endelig avgjorelse av en vold- giftsret, bestaaende av en praesi- det, som ikke er nogen av par- ternes undersaat eller bosat i noget av de to lande, samt av to and re medlemmer, en svensk og en norsk.
Praesidenten vaelges av Hen- des Majestaet Dronningen av Nederlandene, de ovrige medlem- mer en av hver part. Parterne forbeholder sig dog i tilfaelde av, at de derom kan enes, ved saers- kilt overenskomst at utse en ten
1 Martens, Nouveau Recueil General de Traites, 3d series, vol. 2, p. 761.
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vare sig blott ordforanden eller skiljedomstolens samtliga leda- moter. Framstallning till Hen- nes Majestat Drottningen af Nederlanderna eller skiljedomare, som ma blifva utsedd genoni ofverenskommelse, skall goras af bada parterna gemensamt.
ART. 2
Skiljedomstolen skall, efter profning af parternas yrkanden samt till stod darfor anforda skal och bevis, faststalla granslinjen i vattnet fran punkt XVIII a den vid de svenska och norska kom- missariernas forslag af 18 augusti 1897 fogade karta ut i hafvet intill territorialgransen. Det ar ofverenskommet, att ytterlinjerna for det omrade, som genom par- ternas yrkande kan goras till foremal for tvist och inom hvilket gransen alltsa skall faststallas, icke ma dragas sa att daraf om- fattas oar, holmar och skar, som ej standigt ofverskoljas af vatt- net.
ART. 3
Skiljedomstolen ager att afgora, huruvida granslinjen bor anses vara, belt eller till viss strackning, bestamd genom granstraktaten af 1661 med dartill horande karta och huru den salunda bestamda granslinjen bor uppdragas, samt att, for sa vidt granslinjen anses ej vara genom ifragavarande traktat och karta bestamd, fast- stalla densamma med afseende pa faktiska forhallanden och fol- krattsliga principer.
ART. 4
Intill utgangen af tredje kalen- deraret efter det, hvarunder skiljedomstolens slutliga beslut
alene praesidenten eller vold- giftsrettens samtlige medlemmer. Henvendelse till Hendes Majaes- taet Dronningen av Nederlandenc eller til voldgiftsdommer, som maate bli utseet gjennem overens- komst, skal rettes av begge parter i faellesskap
ART. 2
Voldgiftsretten skal efter ad ha provet parternes paastande og de til stotte derfor anforte grunde og bevisligheter fastsaette graen- sellinjen i vandet fra punkt XVIII paa det kart, som er bilagt de svenske og norske kommis- saerers forslag av 18 august 1897, ut i havet indtil territorialgraen- sen. Det er overenskommet, at yderlinjerne for det omraade, som ved parternes paastande kan gjores til gjenstand for tvist, og indenfor hvilket graensen altsaa skal fastsaettes, ikke maa drages saaledes, at deri indbefattes oer, holmer og skjaer, som ikke stadig overskylles av vandet.
ART. 3
Voldgiftsretten bar at avgjore, hvorvidt graenselinjen bor ansees for at vaere belt eller paa en vis straekning fastslaaet ved graen- setraktaten av 1661 med dertil horende kart, og hvorledes den saaledes bestemte graenselinje bor optraekkes, samt forsaavidt graenselinjen ikke ansees at vaere bestemt ved omhandlede traktat og kart, at fastsaette samme under hensyn til faktiske forhold og folkeretslige principer.
ART. 4
Indtil utgangen av det tredje kalenderaar efter det, i hvilket voldgiftsrettens endelige beslut-
498
ORIGINAL TEXTS
meddelas, ma oberoende af den granslinje, som genom berorda beslut faststalles, fiske inom det omrade, som enligt art. 2 kan vara foremal for tvist, idkas af hvartdera rikets undersatar i samma omfattning som under femarsperioden 1901-05. Vid bedomande af fiskets omfattning tages hansyn till de fiskandes antal, fiskets art och fangstsattet.
ART. 5
Det ar ofverenskommet, att det rike, pa hvars sida om den blifvande granslinjen fiskegrundet Grisebadarne ar belaget, icke gentemot det andra riket ager nagot ansprak pa deltagande i kostnaden for fyrskepp eller lik- nande anordningar pa eller i narheten af namnda grund.
Sverige forbinder sig att bibe- halla det nuvarande, utanfor territorialgransen utlagda fyrs- keppet intill utgangen af den i art. 4 namnda tid.
ART. 6
Skiljedomstolens ordforande utsatter tid och ort for dom- stolens forsta sammantrade och kallar till detta sammantrade de ofriga ledamoterna.
Tid och ort for ytterligare sam- mantraden bestammas af skilje- domstolen.
ART. 7
Det officiella sprak, som af skiljedomstolen anvandes, skall vara engelska, franska eller tyska, enligt bestammande, som traffas af ordforanden efter samrad med de ofriga ledamoterna.
Parterna ma dessutom i inlagor,
ning meddeles, skal uten hensyn til den graenselinje, som gjennem naevnte beslutning fastaettes, fiske kunne drives av hvert rikes undersaatter indenfor det om- raade, som efter art. II kan vaere gjenstand for tvist, i samme utstraekning som under femaars- perioden 1901-1905. Ved bedom- melsen av fiskets utstraekning tages hensyn til de fiskendes antal, fiskets art og fangstmaaten.
ART. 5
Det er overenskommet, at det rike, paa hvis side av den blivende graenselinj e fiskegrunderne "Grisebaaerne" er beliggende, ikke overfor det andet rike har krav paa deltagelse i omkost- ninger til fyrskib eller lignende foranstaltninger paa eller i naer- heten av naevnte grunder.
Sverige f orpligter sig til at bibe- holde det nuvaerende utenfor territorialgraensen anlagte fyrskib indtil utgangen av den i art. IV naevnte overgangstid.
ART. 6
Voldgiftsrettens praesident be- stemmer tid og sted for rettens forste sammentraede og varsler de ovrige medlemmer om dette sammentraede.
Tid og sted for videre sammen- traede bestemmes av voldgiftsret- ten.
ART. 7
Det officielle sprog, som af voldgiftsretten blir at anvende, skal vaere engelsk, fransk eller tysk overensstemmende med beslutning, som fattes av praesi- denten efter samraad med de ovrige medlemmer.
Parterne kan desuten i indlaeg,
THE GRISBADARNA CASE
499
beviscmedel och anforanden be- gagna nagotdera landets sprak, skiljedomstolen obetaget att lata verkstalla ofversattning.
ART. 8
I afseende a forfarandet och omkostnaderna skola i tillampliga delar galla de bestammelser, som innefattas i art. 62-85 af den pa andra fredskonferensen i Haag 1907 antagna reviderade konven- tion for afgorandet pa f redlig vag af internationella tvister.
Inlagor, repliker och bevis- medel, som afses i art. 63 mom. 2 af namnda konvention, skola del- gifvas inom tider, som af skilje- domstolens ordforande bestam- mas, och sist fore den 1 mars 1909. Harigenom verkas ej rubbning i foreskrifterna om forfarandets andra afdelning, sarskildt icke i bestammelserna i art. 68-72 och 74 af samma kon- vention.
Skiljedomstolen ager, nar den for sakens upplysning finner nodigt, anordna forhor, i bada parternas narvaro, med vittnen eller sakkunniga samt foreskrifva verkstallandet af gemensamma hydrografiska undersokningar betraffande det tvistiga omradet.
ART. 9
Denna konvention skall ratifi- ceras och ratifikationerna utvaxlas i Stockholm snarast mojligt.
Till bekraftelse haraf hafva vederborande fullmaktige under- tecknat denna konvention och forsett den med sina sigill.
Utfardad i tva exemplar pa svenska och norska i Stockholm den 14 mars 1908.
bevismidler og anforsler benytte hvert av de to landes sprog, idet det er voldgiftsretten forbeholdt at foranstalte oversaettelse.
ART. 8
Med hensyn til proceduren og omkostningerne kommer til an- vendelse, forsaavidt de kan tillempes, de bestemmelser, som indeholdes i artiklerne 62 till 85 i den paa den anden fredskon- ference i Haag i 1907 vedtagne reviderede konvention om fre- delig avgjorelse av Internationale stridigheter.
Indlaeg, repliker og bevis- midler, hvortil sigtes i art. 63, 2 avsnit, i naevnte konvention, skal meddeles inden de tidsfrister, som av voldgiftsrettens praesident bestemmes, og senest inden 1 mars 1909. Herved sker ingen aendring i reglerne for procedu- rens anden avdeling, specielt ikke i bestemmelserne i art. 68—72 og 74 i samme konvention.
Voldgiftsretten har adgang til, naar den for sakens oplysning finder det nodvendigt, at foran- stalte avhorelse i begge parters naervaer av vidner og sakkyndige samt til at beslutte iverksaettelse av faelles hydrografiske under- sokelser vedrorende det omtvis- tede omraade.
ART. 9
Denne konvention skal ratifi- ceres og ratifikationerne utvexles i Stockholm snarest mulig.
Til bekraeftelse herav har de respektive befuldmaegtigede un- dertegnet denne konvention og forsynet den med sine segl.
Udfaerdiget i to exemplarer paa svensk og norsk in Stockholm den 14 mars 1908.
500 ORIGINAL TEXTS
Royal Resolution of March 26, 1904, with accompanying Protocol of March 15, 1904, concerning the Maritime Boundary between Nor- way and Sweden*
Under aberopande af bilagda prolokoll i sammansatt norskt och svenskt statsrad den 15 mars 1904 afvensom utdrag af statsradsproto- kollet ofver civilarenden for denna dag vill Kungl. Maj :t harmed foresla Riksdagen medgifva, att fragan om strackningen af sjogransen emellan Sverige och Norge fran den i forenamnda protokoll omfor- malda punkt XVIII ut i hafvet, sa langt territorialgransen gar, ma hanskjutas till afgorande af en sarskild skiljedomstol, i ofverensstam- melse med hvad i protokollen ar anfordt.
De till arendet horande handlingar skola Riksdagens vederborande utskott tillhandahallas ; och Kungl. Maj :t f orblif ver Riksdagen med all kungl. nad och ynnest stadse valbevagen.
Under Hans Maj :ts, Min Allernadigste Konungs och Herres f ranvaro :
GUSTAF
HJALMAR WESTRING
PROTOKOLL, HALLET I SAMMANSATT NORSKT OCH SVENSKT STATSRAD INFOR HANS KUNGL. HOGHET KRONPRINSEN-REGENTEN A KRIS-
TIANIA SLOTT DEN 15 MARS 1904
Narvarande: Hans excellens herr statsministern Hagerup, Hans excellens herr statsministern Ibsen, Hans excellens herr statsministern Bostrom, Hans excellens herr ministern for utrikes arendena Lager- heim, Statsraden: Kildal, Strugstad, Hauge, Schoning, Vogt, Mathie- sen och Svenska statsradet Westring.
Chefen for handels- och industridepartementet, statsradet Schoning foredrog i underdanighet foljande:
Departementet tillater sig att inkomma med underdanigt betankande angaende atgarder till narmare bestammelse af riks- gransen i vattnet mellan Sverige och Norge.
Sjogransen mellan de tvanne landerna, som loper fran det inre af Idefjorden och ut till hafvet, ar faststalld genom en grans- reglering af den 26 oktober 1661, foretagen i ofverensstammelse med fredstraktaterna i Roskilde af den 26 februari-9 mars 1658 och i Kopenhamn af den 27 maj-6 juni 1660.
Det har under tidernas lopp harskat osakerhet om denna granslinje betraffande flera punkter, i det att den icke nagon gang under den langa tidsperioden mellan 1661 och 1897 har gjorts till0 foremal for gemensam besiktning och undersokning.
Ar 1897 vidtogo norska inredepartementet och svenska civil- departementet atgard for att soka fa gransens ratta strackning klargjord, och under augusti manad namnda ar sammantradde
1Sweden. Royal Resolution No. 70, 1004.
THE GRISBADARNA CASE 501
darefter tva norska och tva svenska kommissarier for att, efter genomgaende af handlingar och undersokningar pa platsen o. s. v., afgifva forslag till bestammande och angifvande pa kartorna af granslinjen mellan Norge och Sverige fran det inre af Idef jorden och ut till hafvet.
De norska kommissarierna voro expeditionssekreteraren Hroar Olsen och kommendoren A. Rieck; de svenska kommissarierna voro kommendoren E. Oldberg och assessoren H. Westring.
Kommissarierna framlade den 18 augusti 1897 som resultat af sina forhandlingar och undersokningar "kungl. svenska och norska kommissionens forslag till och beskrifning af sjogransen mellan Norge och Sverige fran det inre af Idef jorden ut till hafvet."
Det framgar af denna handling, som ar undertecknad af sam- tliga fyra kommissarierna, att enighet radde mellan dessa om granslinjen fran det inre af Idef jorden till en punkt mellan Jylte kummel (norsk) och en holme nordvast om Norra Hellso (svensk) — hvilken punkt ar betecknad som XVIII pa en forslaget bilagd karta — sa att Helleholmen hanfores till Sverige, Kniv- soarna till Norge.
Med hansyn till granslinjens strackning fran namncla punkt XVIII och ut till hafvet uppnaddes daremot icke enighet mom kommissionen. De norska och de svenska medlemmarna fram- stallde for denna del hvar sitt sarskilda forslag, i enlighet hvarmed Grisbadarna tillika med nagra norr om Koster liggande skar och grand skulle tillfalla respektive Norge eller Sverige.
Kommissariernas forslag tillika med tva dartill horande kartor bilaggas.
Departementet ar af den asikt, att den af de norska och de sven- ska kommissarierna gemensamt foreslagna linjen fran det inre af Idef jorden till punkt XVIII pa de forslaget medfoljande kartor bor anses som den riktiga granslinjen. I dett att med hansyn till den narmare beskrifningen af denna linje hanvisas till kommis- sariernas forslag, tillater departementet sig att hemstalla, att lin- jen af Eders Maj :t godkannes sasom den ratta gransen mellan rikena.
Sa f ramt Elders Maj :t behagade fatta beslut i of verensstam- melse melse harmed, forutsatter departementet, att darefter kungl. kungorelser angaende den godkanda granslinjen utfardas i hvartdera rikets sarskilda statsrad.
Det torde vidare bora framhallas, att det ar af betydelse, att snarast mojligt ett utmarkande af den har omhandlade delen af sjogransen ma aga rum. Den andamalsenligaste ordningen synes vara att en kommissarie for hvart rike utses att foretaga detta utmarkande, och departementet tillstyrker darfor Eders Maj :t att bifalla detta, i det att departementet utgar if ran att i sa fall i hvartdera rikets sarskilda statsrad utnamnas, respektive en norsk och en svensk kommissarie.
Som ofvan anforts, uppnadde de norska och de svenska kom-
502 ORIGINAL TEXTS
missarierna icke enighet med afseende a fragan om gransens ratta strackning fran omformalda punkt XVIII ut till hafvet.
Har nedan lamnas en narmare beskrifning a den omtvistade granslinjen, sadan som den fran norsk och fran svensk sida ar afsedd att bora ga.
DE NORSKA KOMMISSARIERNAS UPPFATTNING
Fran den som punkt XVIII betecknade punkten mellan Jylte kummel och en holme nordvast om Norra Hellso bor gransen dragas i rat linje ut i oppna hafvet genom midtpunkten af en rat linje, dragen fran sydspetsen af den sydligaste norska Tislaron, Kloveren, till nordspetsen af norra Kostero (svensk), si att granslinjen gar ofver Batshakegrundet och att alia norr om denna granslinje liggande holmar, skar och grund, daribland Grisbadarna, blifva norska.
Lin jen ar pa kommissariernas karta betecknad med ful farg, och den omnamnda punkten mellan Kloveren och norra Kostero betecknad som punkt XIX.
DE SVENSKA KOMMISSARIERNAS UPPFATTNING
Fran punkt XVIII bor gransen dragas i rat linje ut till oppna hafvet genom en punkt omkring 300 meter norr om Rodskars Nordgrund och darefter ungefar midt mellan Grisbadarna och Skottegrunden sa, att alia soder om denna linje liggande holmar, skar och grund, daribland Grisbadarna, blifva svenska.
Lin jen ar pa kommissariernas karta betecknad med gul farg, och den namnda punkten norr om Rodskars Nordgrund betecknad som punkt XIX.
Detta departement tillater sig underdanigst att foresla, att fragan om den omtvistade granslinjen hansk jutes till afgorande genom skiljedom af en sarskild domstol, sedan samtycke hartill gifvits af bagge rikenas representationer, och att man harvid for- far pa foljande satt:
I hvartdera rikets sarskilda statsrad utses tva skiljeman.
Skiljemannen valja gemensamt pa forhand en femte skiljeman, som tillika fungerar som domstolens ordforande. Vid lika rostetal anfortros valet af femte skiljeman till det frammande statsofver- hufvud, som Hans Maj :t Konungen darom anmodar.
Reglerna for domstolens arbetsordning och for forhandlingarna afvensom for dess sate bestammas af domstolen sjalf.
Den i behorig ordning afkunnade skiljedomen angaende den omtvistade granslinjens ratta strackning skall vara slutligft bin- dande for bagge parterna.
Hvartdera riket bestrider de omkostnader for skiljedomen, som anga det allena, hvaremot de gemensamma utgifterna sasom till den femte skiljemannen o. s. v. fordelas med halften pa hvartdera riket.
THE GRISBADARNA CASE 503
I ofverensstammelse med ofvanstaende tillater sig departementet underdanigst hemstalla:
att Eders Maj :t behagade i nader bestamma :
1°.) att den af de norska och de svenska kommissarierna ar 1897 gemensamt foreslagna granslinjen mellan Norge och Sverige fran det inre af Idefjorden till punkt XVIII pa tva, kommissariemas forslag bif ogade kartor godkannes ;
2°.) att utmarkande af denna granslinje skall foretagas af dartill utsedda kommissarier, en fran hvartdera riket;
3°.) att fragan om granslinjen mellan Norge och Sverige fran ofvannamnda punkt XVIII ut i hafvet, sa langt territorialgransen gar, hansk jutes till afgprande af en sarskild skiljedomstol, i ofverensstam- melse med hvad har of van an forts, for savidt de tva rikenas represen- tationer dartill gifva sitt samtycke.
De svenska ledaanoterna af statsradet instamde i hvad foredragan- den hemstallt betraffande godkannande af den utaf de svenska och de norska kommissarierna foreslagna granslinjen fran det inre af Idef- jorden till den namnda punkten XVIII samt denna granslinjes utmarkande.
Hvad angick gransens strackning fran punkten XVIII ut i hafvet intill territorialgransen, anmaldedessa ledamoter, att uti flera i arendet inkomma utlatanden framstallts forslag till granslinjens bestammande salunda, att denna linje delvis komme att dragas annu nagot nordligare an dc svenska kommissarierna foreslagit. Under uttelande, med hansyn hartill, af den uppfattning att forslaget om ofverlamnande till en sarskild skiljedomstol att afgora fragan om gransens strackning i denna del innebure, att parterna a omse sidor skulle aga att, utan att vara bundna enhvar af sina kommissariers forslag, infor domstolen framstalla de pastaenden i namnda hanseende, hvartill de kunde finna sig befogade, bitradde dessa ledamoter fore- dragandems forslag jamval i denna del.
De norska medlemmarna af statsradet hade intet att anmarka mot ofvanstaende anforande, som ofverensstamde med hvad som ocksa fran norsk sida hade forutsatts.
I enlighet med hvad statsradets ledamoter salunda tillstyrkt, behagade Hans Kungl. Hoghet Kronprinsen-Regenten bifalla det af chefen for norska handelsoch industridepartementet framstallda forslaget.
THE ORINOCO STEAMSHIP COMPANY CASE
Award of the Tribunal, October 25,
Par un Compromis signe a Caracas le 13 fevrier 1909, les Etats-Unis d'Amerique et du Venezuela se sont mis d 'accord pour soumettre a un Tribunal arbitral, compose de trois Arbitres choisis parmi les Mem- bres de la Cour permanente d'Arbitrage, une reclamation des Etats- Unis d'Amerique envers les Etats-Unis du Venezuela ;
Ce compromis porte :
"Le Tribunal arbitral decidera d'abord si la Sentence du Surarbitre Barge en cette affaire, en vue de toutes les circonstances et d'apres les principes de droit international, n'est pas entachee de nullite et si elle doit etre consideree comme concluante au point d'exclure un nouvel examen du cas sur le fond. Si le Tribunal arbitral decide que la dite Sentence doit etre consideree comme definitive, 1'affaire sera con- sideree par les Etats-Unis d'Amcrique comme terminee; mais si, par centre, le Tribunal arbitral decide que la dite Sentence du Surarbitre Barge ne doit pas etre consideree comme definitive, le dit Tribunal arbitral devra alors entendre, examiner et resoudre 1'affaire et rendre sa decision sur le fond ;"
En execution du dit Compromis, les deux Gouvernements ont respectivement nomme Arbitres les Membres suivants de la Cour per- manente d'Arbitrage :
Son Excellence Monsieur Gonzalo de Quesada, Envoye extraordi- naire et Ministre plenipotentiaire de Cuba a Berlin, etc. ;
Son Excellence Monsieur A. Beernaert, Ministre d'Etat, Membre de la Chambre des Representants Beige, etc. ;
Et en vertu du dit Compromis, les Arbitres ainsi designes ont nomme Surarbitre:
Monsieur H. Lammasch, Professeur a 1'Universite de Vienne, Mem- bre de la Chambre des Seigneurs du Parlement Autrichien, etc. ;
Les Memoires, Contre-Memoires et Conclusions ont ete dument soumis aux Arbitres et communiques aux Parties ;
Les Parties ont plaide et replique ; Tune et 1'autre ont pi aide le fond en meme temps que la question prealable et les debats ont ete declares clos le 19 octobre 1910;
Sur quoi, le Tribunal apres en avoir murement delibere, rend la Sentence suivante:
Considerant qu'aux termes d'un Compromis en date du 17 fevrier 1903 une Commission Mixte a ete chargee de decider toutes les reclamations exercees (owned — poseidas) par des citoyens des Etats-
report, p 54.
THE ORINOCO STEAMSHIP COMPANY CASE 505
Unis d'Amerique a rencontre des Etats-Unis du Venezuela, qui n'auraient point etc reglees par un accord diplomatique ou par un arbitrage entre les deux Gouvernements et qui seraient presentees par les Etats-Unis d'Amerique; un Surarbitre, a designer par Sa Majeste la Reine des Pays-Bas, devait eventuellement trancher toute question sur laquelle les Commissaires seraient en disaccord par une decision definitive (final and conclusive — definitiva y concluyente) ;
Considerant que le Surarbitre ainsi designe, M. Barge, a statue sous la date du 22 f evrier 1904, sur les dites reclamations ;
Considerant qu'il est assurement de 1'interet de la paix et du deve- loppement de 1'institution de 1'arbitrage international si essentiel pour le bien-etre des nations, qu'en principe semblable decision soit ac- ceptee, respectee et executee par les Parties sans aucune reserve, ainsi qu'il est present par 1'article 81 de la Convention pour le reglement pacifique des conflits internationaux du 18 octobre 1907 que d'ailleurs, aucune juridiction n'est institute pour reformer de semblables decisions ;
Mais considerant que dans 1'espece, la sentence ayant ete arguee de nullite, il est advenu entre les Parties, sous la date du 13 f evrier 1909, un nouveau Compromis, d'apres lequel, sans tenir compte du caractere definitif de la premiere sentence, ce Tribunal est appele a decider, si la sentence du Surarbitre Barge, en vertu de toutes les circonstances et d'apres les principes du droit international, n'est pas entachee de nullite et si elle doit etre consideree comme concluante au point d'exclure un nouvel examen au fond ;
Considerant que par le Compromis du 13 f evrier 1909, les deux Parties admettent au moins implicitement, comme vices entrainant la nullite d'une sentence arbitrale, 1'exces de pouvoir et 1'erreur essentielle dans le jugement (excessive exercise of jurisdiction and essential error in the judgment — exceso de poder y error esencial en el fallo) ;
Considerant que la Partie demanderesse allegue 1'exces de pouvoir et de nombreuses erreurs de droit et de fait equivalent a 1'erreur essentielle ;
Considerant que, d'apres les principes de 1'equite d'accord avec le droit, lorsque une sentence arbitrale comporte divers chefs inde- pendants de demande et partant diverses decisions, la nullite eventuelle de Tune est sans influence quant aux autres et cela surtout lorsque, comme dans 1'espece 1'integrite et la bonne foi de Farbitre ne sont pas en question ; qu'il y a done lieu de statuer separement sur chacun des points en litige ;
I. QUANT AUX 1,209,701.04 DOLLARS:
Considerant que ce Tribunal est appele en premier lieu a decider si la sentence du Surarbitre est entachee de nullite et si elle doit etre consideree comme concluante ; que dans le cas seulement ou la sentence du Surarbitre serait declaree nulle, le Tribunal aurait a statuer au fond ;
Considerant qu'il est allegue que le Surarbitre se serait ecarte des termes du Compromis en relatant inexactement le contrat Grell et la
506 ORIGINAL TEXTS
prevention a laquelle celui-ci servait de base, et que par suite il serait tombe dans une erreur essentielle, mais que la sentence reproduit textuellement le dit contrat et dans son entiere teneur; qu'il est d'autant moins admissible que le Surarbitre en aurait mal compris le texte et aurait excede sa competence et decide sur une reclamation qui ne lui etait pas soumise, en meconnaissant la relation de la con- cession en question a la navigation exterieure, alors qu'il a decide in terminis, que le permis de naviguer par ces canaux (Marcareo et Pedernales) etait seulement ajoute au permis de toucher a Trinidad ("when the permission to navigate these channels was only annexed to the permission to call at Trinidad") ;
Considerant que Tappreciation des faits de la cause et 1'interpreta- tion des documents etait de la competence du Surarbitre et que ses decisions en tant qu'elles sont fondees sur pareille interpretation ne sont pas sujettes a etre revisees par ce Tribunal, qui n'a pas la mission de dire, s'il a ete bien ou mal juge, mais si le jugement doit etre annule ; que si une sentence arbitrate pouvait etre querellee du chef d'apprecia- tion erronee, Tappel et la revision, que les Conventions de La Have de 1899 et 1907 ont eu pour but d'ecarter, seraient de regie generate ;
Considerant que le point de vue sous lequel le Surarbitre a en- visage la demande des $513,000 — plus tard reduite dans les con- clusions des Etats-Unis d'Amerique a $335,000 et partie de la predite somme de $1,209,701.04 — est la consequence de son interpretation du contrat du 10 mai 1900 et de la relation de ce contrat au decret du meme jour;
Considerant que la circonstance que le Surarbitre, ne se contentant pas d'avoir fonde sa sentence sur son interpretation des contrats, motif qui en lui-meme doit etre considere comme suffisant, a invoque sub- sidiairement d'autres raisons d'un caractere plutot technique, ne peut pas vicier sa decision;
II. QUANT AUX 19,200 DOLLARS (100,000 BoLfvAREs) :
Considerant que le Compromis du 17 fevrier 1903 n'investissait pas les Arbitres d'un pouvoir discretionnaire, mais les obligeait de rendre leur sentence sur la base de Tequite absolue sans tenir compte d'objec- tions de nature technique ou de dispositions de la legislation locale (con arreglo absoluto a la equidad, sin reparar en objeciones tecnicas, ni en las disposiciones de la legislacion local — upon a basis of absolute equity, without regard to objections of a technical nature, or of the provisions of local legislation) ;
Considerant que Pexces de pouvoir peut consister non seulement a decider une question non soumise aux Arbitres, mais aussi a mecon- naitre les dispositions imperatives du Compromis quant a la voie d'apres laquelle ils doivent arreter leurs decisions, notamment en ce qui concerne la loi ou les principes de droit a appliquer ;
Cpnsiderant que le rejet de la demande des 19,200 dollars n'est motive que 1°. par Tabsence de tout appel a la Justice Venezuelienne et 2°. par le def aut de notification prealable de la cession au debiteur,
THE ORINOCO STEAMSHIP COMPANY CASE 507
"la circonstance qu'on pourrait se demander si le jour ou cette re- clamation fut enregistree, la dette etait exigible" ne pouvant evidem- ment servir de justification au dit re jet;
Considerant qu'il resulte des Compromis de 1903 et de 1909 — base du present arbitrage — que les Etats-Unis du Venezuela avaient renonce conventionellement a faire valoir les dispositions de 1'article 14 du contrat Grell et de 1'article 4 du contrat du R) mai 1900 ; qu'a la date des dits Compromis il etait en effet constant qu'aucun litige entre ces Parties n'avait etc def ere aux Tribunaux Venezueliens et que le main- tien de la juridiction Venezuelienne quant a ces reclamations cut ete incompatible et inconciliable avec 1'arbitrage institue;
Considerant qu'il ne s'agissait pas de la cession d'une concession, mais de la cession d'une creance, que le def aut de notification prealable de la cession d'une creance n'est que 1'inobservation d'une prescription de la legislation locale et bien que pareille prescription se trouve aussi dans d'autres legislations, elle ne peut etre considered comme exigee par 1'equite absolue, au moins lorsqu'en fait, le debiteur a eu connais- sance de la cession et qu'il n'a pas plus paye sa dette au cedant qu'au cessionnaire ;
III. QUANT AUX 147,638.79 DOLLARS :
Considerant qu'en ce qui concerne les 1,053 dollars pour transport de passagers et marchandises en 1900 et les 25,845.20 dollars pour loyer des bateaux a vapeur Delta, Socorro, Masparro, Guanare, Heroe de juillet 1900 a avril 1902, la sentence du Surarbitre ne se fonde que sur le defaut de notification prealable de la cession au Gouvernement du Venezuela ou d'acceptation par lui, et que, comme il a ete deja dit, ce moyen de defense etait ecarte par le Compromis;
Considerant qu'on pourrait en dire autant de la demande des 19,571.34 dollars pour remboursement d'impots nationaux qui auraient ete illegalement pergus et de celle des 3,509.22 dollars du chef de la retention du "Bolivar," mais qu'il n'est pas prouve, d'une part que les impots dont il s'agit etaient de ceux dont la Orinoco Shipping and Trading Company etait exempte, d'autre part que le fait querelte pro- cederait d'un abus d'autorite de la part du Consul Venezuelien et qu'ainsi ces deux demandes devant etre rejetees au fond, quoique par d'autres motifs, 1'annullation de la sentence en ce point serait sans interet ;
Considerant que la decision du Surarbitre allouant 27,692.31 dollars au lieu de 28,461.53 dollars pour retention et loyer du Masparro et Socorro du 21 mars au 18 septembre 1902, est quant aux 769.22 dol- lars non alloues, ici encore uniquement fondee sur le defaut de notifi- cation de la cession de la creance;
Considerant que la decision du Surarbitre quant aux autres demandes rentrant dans ce chef pour la periode posterieure au 1 avril 1902 est fondee sur des appreciations des faits et sur une interpretation de principes de droit qui ne sont pas sujettes ni a nouvel examen ni a revision par ce Tribunal, les decisions intervenues sur ces points n'etant pas entachees de nullite ;
508 ORIGINAL TEXTS
IV. QUANT AUX 25,000 DOLLARS :
Considerant que la demande de 25,000 dollars pour honoraires, depenses et debours a etc rejetee par le Surarbitre en consequence du rejet de la plupart des reclamations des Etats-Unis d'Amerique, et que — par la presente sentence — quelques-unes de ces reclamations etant admises, il parait equitable d'allouer une partie de cette somme, que le Tribunal fixe ex aequo et bono a 7,000 dollars ;
Considerant que la loi Venezuelienne fixe 1'interet legal a 3% et que, dans ces conditions, le Tribunal, tout en constatant en fait 1'in- suffisance de ce taux, ne peut allouer d'avantage ;
PAR CES MOTIFS:
Le Tribunal declare nulle la sentence du Surarbitre M. Barge en date du 22 f evrier 1904, quant aux quatre points suivants :
1°. les 19,200 dollars;
2°. les 1,053 dollars;
3°. les 25,845.20 dollars;
4°. les 769.22 dollars deduits da la reclamation des 28,461.53 dol- lars pour retention et loyer du Masparro et Socorro ;
Et statuant, en consequence de la nullite ainsi constatee, et a raison des elements soumis a son appreciation :
Declare ces chefs de demande fondes et alloue aux Etats-Unis d'Amerique, independamment des sommes allouees par la sentence du Surarbitre du 22 f evrier 1904, les sommes de :
1°. 19,200 dollars; 3°. 25,845.20 dollars;
2°. 1,053 dollars; 4°. 769.22 dollars;
le tout avec interet a 3 pet. depuis la date de la demande (16 juin 1903) et a payer dans les deux mois de la presente sentence ;
alloue en outre a titre d'indemnite pour remboursement de frais et honoraires 7,000 dollars ;
rejette la demande pour le surplus; la sentence du Surarbitre M. Barge du 22 fevrier 1904 devant conserver en dehors des points ci-dessus, son plein et entier effet.
Fait a La Haye, dans 1'Hotel de la Cour permanente d 'Arbitrage, en triple exemplaire, le 25 octobre 1910.
Le President: LAMMASCH Le Secretaire general: MICHIELS VAN VERDUYNEN
Agreement for Arbitration, February 13, /pop1
El Doctor Francisco Gonzalez Guinan, Ministro de Relaciones Ex- teriores de los Estados Unidos de Venezuela, debidamente autorizado por el General Juan Vicente Gomez, Vicepresidente de los Estados Unidos de Venezuela, Encargado de la Presidencia de la Republica,
1Official report, p. 9.
THE ORINOCO STEAMSHIP COMPANY CASE 509
y William I. Buchanan, Alto Comisionado, Representante del Presi- dente de IDS Estados Unidos de America, habiendose exhibido y en- contrado en forma sus respectivos poderes, y anomados del espiritu de franca amistad que siempre ha existido y debe existir entre las dos Naciones que representan, han tratado en repetidas y prolongadas conferencias de la manera de arreglar amistosa y equitativamente las diferencias que existen entre sus respectivos Gobiernos con respecto a las reclamaciones pendientes entre las dos Naciones, pues ni los Estados Unidos de Venezuela ni los Estados Unidos de America aspi- ran a otra cosa que al sostenimiento de lo que en justicia y equidad les corresponda; y como resultado de estas conferencias, han recono- cido la grande importancia del arbitraje como medio de mantener la buena armonia que debe existir y desarrollarse entre sus respectivas Naciones y a fin de evitar en lo futuro, en todo lo posible, diferencias entre ellas, creen que es de todo punto conveniente que un Tratado de Arbitramento sea ajustado entre sus respectivos Gobiernos.
Con respecto a las reclamaciones que han sido el tema de sus largas y amistosas conferencias, el Doctor Francisco Gonzalez Guinan y William I. Buchanan han encontrado que las opiniones y puntos de vista sostenidos por sus respectivos Gobiernos han sido y son tan diametralmente opuestos y distintos, que han encontrado dificil resol- verlos de comun acuerdo, por lo cual tienen que apelar a la medida conciliatoria del arbitraje, medida a la cual las dos Naciones que repre- sentan estan ligadas entre si por sus firmas a los tratados de la Se- gunda Conferencia de la Paz de La Hay a de 1907, y que esta recono- cida por todo el mundo civilizado como el unico modo satisfactorio para solucionar los conflictos internacionales.
Convencidos asi y firmes en sus propositos de no permitir que por riingun motivo se perturbe la cordialidad que siempre ha existido entre sus respectivos Paises, los expresados Senores Doctor Francisco Gonzalez Guinan y William I. Buchanan, ampliamente autorizados al efecto, han ajustado, convenido y firmado el Presente Protocolo para el arreglo de dichas reclamaciones contra los Estados Unidos de Vene- zuela, que son las siguientes:
1. La reclamacion de los Estados Unidos de America en favor dc la Orinoco Steamship Company;
2. La reclamacion de los Estados Unidos de America en favor de la Orinoco Corporation y de sus causantes, The Manoa Company Limited, The Orinoco Company y The Orinoco Company Limited; y
3. La reclamacion de los Estados Unidos de America en favor de la United States and Venezuela Company (tambien conocida como la reclamacion Crichfield ) .
ART!CULO 1
Con respecto a la primera de esas reclamaciones, la de la Orinoco Steamship Company, los Estados Unidos de Venezuela han sostenido la inmutabilidad del fallo arbitral del Superarbitro Barge librado en este caso, alegando que dicho fallo no adolece de ninguna de las causales que por jurisprudencia universal dan lugar a nulidad, sino
510 ORIGINAL TEXTS
que antes bien reviste el caracter de inapelable, pues no puede tenerse ppr nulo el Compromiso de Arbitraje, ni ha habido exceso de poder, ni puede a'egarse corrupcion de jueces, ni error esencial en el fallo; y por otra parte, los Estados Unidos de America, alegando casos practices, entre ellos el caso de la revision, por consentimiento de los Estados Unidos de America, de los fallos arbitrates dictados por la Comision Mixta Venezolano — Americana, creada por la Convencion del 25 de abril de 1866, y fundandose en las circunstancias del caso y considerando los preceptos de derecho internacional y de jurispru- dencia universal, ban sostenido no solo la admisibilidad sino la necesi- dad de la revision de dicho fallo; en consecuencia de esta situacion, el Doctor Francisco Gonzalez Guinan y William I. Buchanan con el espiritu que ha distinguido sus conferencias, han convenido en someter este caso al alto criterio del Tribunal Arbitral creado por este Proto- colo, en la forma siguiente:
El Tribunal Arbitral debe decidir primero si el fallo del Superar- bitro Barge, en este caso, bajo todas las circunstancias y los preceptos de derecho internacional, no esta viciado de nulidad y tiene que con- siderarse concluyente hasta excluir un nuevo examen del caso en su fondo. Si el Tribunal Arbitral falla que debe considerarse dicho fallo concluyente, el caso sera aceptado como concluido por los Estados Unidos de America ; pero, si por otra parte, el Tribunal Arbitral decide que dicho fallo del Superarbitro Barge no debe considerarse definitivo, el mismo Tribunal Arbitral debe entonces examinar, oir y determinar el caso y librar su fallo en su fondo.
ART!CULO 2
En el curso de las muchas conferencias celebradas con respecto al asunto de los Estados Unidos de America por parte de la Orinoco Corporation y de sus causantes, contra los Estados Unidos de Vene- zuela, entre el Doctor Francisco Gonzalez Guinan, Ministro de Rela- ciones Exteriores de Venezuela, y William I. Buchanan, Alto Comisio- nado, Representante del Presidente de los Estados Unidos de Ame- rica, han encontrado que las opiniones y consideraciones sostenidas por sus respectivos Gobiernos con respecto a los derechos y reclama- ciones de la Compafiia reclamante son tan diametr?lmente opuestas entre si, que hacen imposible conciliarlas por medio de negociaciones directas entre sus Gobiernos.
Entre estas han encontrado que los Estados Unidos de America por parte de la Compafiia reclamante sostienen que, tanto por el acto del Congreso Nacional de Venezuela como por Resoluciones y otros actos de su Poder Ejecutivo, los derechos y reclamaciones mantenidos y reclamados por los Estados Unidos de America por parte de la Com- pafiia reclamante en la concesion Fitzgerald, origen del presente caso, y con forme a ella, son firmemente reconocidos y afirmados como sub- sistentes y validos, y que el Gobierno de Venezuela ha insistido e in- siste en que el fallo del Superarbitro Barge del 12 de abril de 1904, que Venezuela considera irrevocable, y la sentencia dictada por la
THE ORINOCO STEAMSHIP COMPANY CASE 511
Corte Federal y de Casacion de Venezuela, el 18 de marzo de 1908, son per si una prueba concluyente de que no existen los derechos ni las pretensiones de la Compania reclamante, pues la expresada Com- pania, aun aceptando ser cesionaria de las otras, no llego a constituirse de conformidad con las leyes de Venezuela, y aun habiendose consti- tuido, de antemano quedaba sometida a las leyes venezolanas y acep- tado que estas debian regir y decidir las contenciones y diferencias que pudieran ocurrir; mientras que los Estados Unidos de America por parte de la Compania reclamante se ban negado y se niegan a aceptar de manera alguna que ni el fallo del Superarbitro Barge ni el de la Corte Federal y de Casacion de Venezuela puedan terminar 6 hayan terminado 6 eliminado los derechos y reclamaciones alegados por la Compania reclamante de acuerdo con dicho contrato Fitzgerald, sino que por el contrario los derechos y reclamaciones alegados en esta materia por la Compania reclamante son validos y subsistentes.
En vista de estas y otras conclusiones igualmente contrarias, alcan- zadas y persistentemente sostenidas por sus respectivos Gobiernos con respecto a este caso, los mencionados Representantes, animados por un firme proposito de hacer todo lo que este a su alcance para con- servar y fomentar una buena inteligencia entre sus Gobiernos, y con el deseo expreso de allegar los medios para un arreglo de las diferen- cias que entre ellos existen con respecto a este caso, en justicia y equidad, no pueden salirse de la conclusion de que ese mismo espiritu de cordialidad que ha venido privando en las numerosas conferencias ya efectuadas, recomienda e indica la conveniencia y la necesidad de someter este asunto a un Tribunal Internacional imparcial, a fin de que las diferencias que de el se derivan scan determinadas una vez por todas y concluyan de manera justa y equitativa. Para llegar a este deseado fin, y de acuerdo con los principles arriba apuntados:
Queda convenido entre el Doctor Francisco Gonzalez Guinan, Minis- tro de Relaciones Exteriores de los Estados Unidos de Venezuela, y William I. Buchanan, Alto Comisionado, Representante del Presidente de los Estados Unidos de America, debidamente autorizados a este efecto por sus respectivos Gobiernos, que el asunto de los Estados Unidos de America por parte de la Orinoco Corporation y de sus causantes, The Manoa Company Limited, The Orinoco Company y The Orinoco Company Limited, sea sometido al Tribunal Arbitral creado por este Protocolo.
Dicho Tribunal Arbitral examinara y decidira:
1. Si el fallo del Superarbitro Barge del 12 de abril de 1904, bajo los preceptos de derecho internacional, no esta viciado de nulidad y conserva el caracter de concluyente en el caso de las causantes de la Compania reclamante contra Venezuela.
2. Si el Tribunal Arbitral sentencia que debe considerarse dicho fallo como concluyente, decidira entonces, que efecto tenia dicho fallo con respecto a la subsistencia del contrato Fitzgerald en aquella fecha, y con respecto a los derechos de la Compania reclamante 6 los de sus causantes en dicho contrato.
3. Si decide que el fallo de dicho Superarbitro Barge no debe
512 ORIGINAL TEXTS
considerarse concluyente, dicho Tribunal Arbitral examinara en su fondo y fallara sobre las cuestiones sometidas a dicho Superarbitro por las causantes de la Compania reclamante.
4. El Tribunal Arbitral examinara, considerara y decidira si ha habido injusticia notoria contra la Compania reclamante, 6 sus causan- tes, respecto del contrato Fitzgerald, por el fallo de la Corte Federal y de Casacion, librado el 18 de marzo de 1908 en el juicio seguido por el Gobierno de Venezuela contra las causantes de la Compania reclamante, 6 por alguno de los actos de cualquiera de las autoridades del Gobierno de Venezuela.
Si el Tribunal Arbitral decide que ha habido tal injusticia, queda facultado para examinar el asunto de la Compania reclamante y de sus causantes contra el Gobierno de Venezuela en su fondo, y para pro- nunciar fallo definitivo respecto de los derechos y las obligaciones de las partes, fijando los danos y perjuicios que en su alto criterio crea justos y equitativos.
En todo caso el Tribunal Arbitral decidira:
(a). Que efecto, si alguno, ha causado y tiene dicho fallo de la Corte Federal y de Casacion, del 18 de marzo de 1908, en todo lo referente a los derechos de la Compania reclamante como cesionaria del contrato Fitzgerald;
(b). Si dicho contrato Fitzgerald esta vigente; y
(c). Si declara que dicho contrato esta vigente, cuales son, entonces, los derechos y las obligaciones de la Compania reclamante por una parte, y del Gobierno de Venezuela por la otra.
ARTfCULO 3
El Doctor Francisco Gonzalez Guinan, Ministro de Relaciones Ex- teriores de los Estados Unidos de Venezuela, y William I. Buchanan, Alto Comisionado, Representante del Presidente de los Estados Uni- dos de America, han tratado cuidadosamente, en las conferencias que han celebrado, el asunto de los Estados Unidos de America, por parte de la United States and Venezuela Company contra los Estados Uni- dos de Venezuela, tambien conocido como asunto Crichfield, y obser- van que aunque los puntos que contienen differen en muchos respectos de los tratados con respecto a las reclamaciones que han sido conside- radas, las mismas opiniones radicalmente opuestas prevalecen por parte de ambos Gobiernos.
A fin, pues, de que ningun asunto quede pendiente que no tienda a robustecer la buena inteligencia y amistad que existen entre los dos Gobiernos, sus Representantes arriba nombrados, el Doctor Francisco Gonzalez Guinan y William I. Buchanan, convienen por el presente que dicho asunto de los Estados Unidos de America, por parte de la United States and Venezuela Company contra los Estados Unidos dc Venezuela, sea sometido al Tribunal Arbitral creado por este Proto- colo, y ademas que dicho Tribunal queda facultado para examinar, oir, considerar, determinar y fallar dicho asunto en su fondo en jus- ticia y equidad.
THE ORINOCO STEAMSHIP COMPANY CASE 513
ARTICULO 4
Los Estados Unidos de Venezuela y los Estados Unidos de Ame- rica, habiendo en la Segunda Conferencia de la Paz efectuada en La Haya en 1907, aceptado y reconocido la Corte Permanente de La Haya, se conviene que todos los casos mencionados en los articulos I, II y III de este Protocol, es decir, el de la Orinoco Steamship Com- pany, el de la Orinoco Corporation y de sus causantes, y el de la United States and Venezuela Company, se pongan bajo la jurisdic- tion de un Tribunal Arbitral compuesto de tres Arbitros escogidos de la Corte Permanente de La Haya ya citada.
No formara parte de este Tribunal Arbitral ninguno de los miem- bros de dicha Corte que sea ciudadano de los Estados Unidos de Vene- zuela 6 de los Estados Unidos de America, y ningun miembro de dicha Corte podra ser abogado ante dicho Tribunal por una u otra Nacion.
Este Tribunal Arbitral tendra su asiento en La Haya.
ARTfCULO 5
Dicho Tribunal Arbitral en cada caso que se le someta determinara decidira y fallara de acuerdo con la justicia y la equidad. Sus de- cisiones seran en cada caso aceptadas y apoyadas por los Estados Unidos de Venezuela y por los Estados Unidos de America como defi- nitivas y concluyentes.
ARTICULO 6
En la presentation de los casos al Tribunal Arbitral pueden ambas partes hacer uso de los idiomas frances, espanol 6 ingles.
ARTiCULO 7
Dentro de ocho meses, contados desde la fecha de este Protocolo, cada una de las partes presentara a la otra y a cada uno de los miem- bros del Tribunal Arbitral dos ejemplares impresos de su alegato con los documentos y pruebas en que se apoye, junto con el testimonio de sus testigos respectivos.
Dentro de un plazo adicional de cuatro meses, cualquiera de las partes puede, de la misma manera, presentar contra-alegato con docu- mentos, pruebas y declaraciones adicionales en contestacion al alegato, documentos, pruebas y declaraciones de la otra parte.
Dentro de sesenta dias contados desde la expiration del plazo senalado para entregar los contra-alegatos, cada Gobierno puede, por medio de su Representante, hacer sus argumentos ante el Tribunal Arbitral, tanto verbalmente como por escrito, y cada uno entregara al otro copias de cualesquiera argumentos asi hechos por escrito, y cada parte tendra derecho a contestar por escrito, siempre que tal contestacion sea sometida dentro de los sesenta dias ultimamente citados.
514 ORIGINAL TEXTS
ART! CULO 8
Todos los archives publicos y documentos bajo el control 6 direc- cion de uno u otro Gobierno 6 en su posesion, relatives a los asuntos en litigio, seran accesibles al otro y, previa solicitud, se le daran las copias autenticadas de ellos. Los documentos que cada parte aduzca en sus pruebas deberan estar autenticados por el respective Ministro de Relaciones Exteriores.
ARTfCULO 9
Todas las adjudicaciones pecuniarias que haga el Tribunal Arbitral en los dichos casos seran en moneda de oro de los Estados Unidos de America, 6 su equivalente en moneda venezolana, debiendo el Tribunal Arbitral fijar el tiempo de los pagos, previa consulta con los Repre- sentantes de los dos Paises.
ARTfCULO 10
Queda convenido que, dentro de seis meses a contar desde la fecha de este Protocolo, el Gobierno de los Estados Unidos de Venezuela y el de los Estados Unidos de America se notificaran mutuamente, asi como tambien notificaran a la Oficina de la Corte Permanente de La Haya, el nombre del Arbitro que escoja de entre los miembros de la Corte Permanente de Arbitraje.
Dentro de los sesenta dias siguientes, los Arbitros arriba menciona- dos se reuniran en La Haya y procederan a escoger el Tercer Arbitro de acuerdo con las previsiones del articulo cuarenta y cinco de la Convencion de La Haya para el Arreglo Pacifico de los Conflictos Internacionales arriba citada.
Dentro del mismo termino cada uno de los dos Gobiernos depositara en dicha Oficina la suma de quince mil francos por cuenta de los gas- tos del arbitramento previsto por este Protocolo, y de cuando en cuando y de la misma manera seran depositadas las demas cantidades necesa- rfas para cubrir dichos gastos.
El Tribunal Arbitral se reunira en La Haya doce meses despues de la fecha de este Protocolo para empezar sus deliberaciones y oir los argumentos a el sometidos. Dentro de sesenta dias despues de cerra- das las audiencias seran librados sus fallos.
ARTfCULO 11
Con excepcion de lo convenido en este Protocolo, el procedimiento arbitral se conformara a las previsiones de la Convencion para el Arreglo Pacifico de los Conflictos Internacionales, de la cual ambas partes son signatarias, firmada en La Haya el 18 de octubre de 1907, y especialmente a las previsiones de su capitulo tercero.
ARTfCULO 12
Queda entendido y pactado que nada de lo expuesto en este Proto- colo sera impedimento para que dentro del termino de cinco meses,
THE ORINOCO STEAMSHIP COMPANY CASE 515
a contar de la fecha de este Protocolo, los Estados Unidos de Vene- zuela puedan llegar a un arreglo amistoso con las dos 6 cada una de las Companias reclamantes a que refieren los articulos II y III, siempre que, en cada caso en que se llegare a un arreglo la respectiva Compania haya obtenido previamente el consentimiento del Gobierno de los Estados Unidos de America.
Los signatarios, el Doctor Francisco Gonzalez Guinan y William I. Buchanan, con el caracter que cada uno iiwiste, de esta manera, dan por terminadas sus conferencias con respecto a las diferencias entre los Estados Unidos de Venezuela y los Estados Unidos de America y firman dos ejemplares de este Protocolo de un mismo tenor y a un solo ef ecto en cada uno de los idiomas espanol e ingles, en Caracas a los trece dias del mes de f ebrero del ano de mil novecientos nueve.
(L. S.) F. GONZALEZ GUINAN (L. S.) WIIXIAM I. BUCHANAN
THE SAVARKAR CASE
Award of the Tribunal, February 24,
Considerant que, par un Compromis en date du 25 octobre 1910, le Gouvernement de la Republique Franchise et le Gouvernement de Sa Majeste Britannique se sont mis d'accord a 1'effet de soumettre a 1'arbitrage, d'une part, les questions de fait et de droit soulevees par 1'arrestation et la reintegration, a bord du paquebot "Morea," le 8 juillet 1910, a Marseille, du sujet britannique (British Indian) Savarkar, evade de ce batiment ou il etait detenu; d'autre part, la reclamation du Gouvernement de la Republique Francaise tendant a la restitution de Savarkar;
que le Tribunal Arbitral a etc charge de decider la question suivante : Vinayak Damodar Savarkar doit-il, conformement aux regies du droit international, etre ou non restitue par le Gouvernement de Sa Majeste Britannique au Gouvernement de la Republique Franchise?
Considerant qu'en execution de ce Compromis, les deux Gouverne- ments ont designe respectivement comme Arbitres:
Son Excellence Monsieur Beernaert, Ministre d'Etat, Membre de la Chambre Beige des Representants, etc., President;
Le Tres Honorable Comte de Desart, ancien Procureur-General de Sa Majeste Britannique;
Monsieur Louis Renault, Professeur a 1'Universite de Paris, Ministre Plenipotentiaire, Jurisconsulte du Departement des Affaires Etran- geres;
Monsieur G. Gram, ancien Ministre d'Etat de Norvege, Gouverneur de Province;
Son Excellence Monsieur le Jonkheer A. F. de Savornin Lohman, Ministre d'Etat, Membre de la Seconde Chambre des Etats-Generaux des Pays-Bas;
Considerant que les deux Gouvernements ont respectivement de- signe comme Agents,
Le Gouvernement de la Republique Franchise :
Monsieur Andre Weiss, Jurisconsulte adjoint du Departement des Affaires Etrangeres de la Republique Frangaise, Professeur a la Faculte de droit de Paris;
Le Gouvernement de Sa Majeste Britannique:
Monsieur Eyre Crowe, Conseiller cPAmbassade, Chef de Section au Departement des Affaires Etrangeres de Sa Majeste Britannique.
Considerant que, conformement aux dispositions du Compromis, les Memoires, Contre-Memoires et Repliques ont ete dument echanges entre les Parties et communiques aux Arbitres.
lOfficial report, p. 50.
THE SAVARKAR CASE 517
Considerant que le Tribunal s'est reuni a La Haye le 1 fevrier 1911,
Attendu, en ce qui concerne les f aits qui ont donne lieu au differend entre les deux Gouvernements, qu'il est etabli que, par une lettre du 29 juin 1910, le Chef de la Police Metropolitaine a Londres a fait savoir au Directeur de la Surete generate a Paris que le sujet Britan- nique Indien (British Indian) Vinayak Damodar Savarkar serait envoye dans 1'Inde a 1'effet d'y etre poursuivi pour une affaire d'as- sassinat, etc. (for abetment of murder, etc.), et qu'il serait a bord du navire "Morea," faisant escale a Marseille le 7 ou le 8 juillet.
Attendu qu'a la suite de cette lettre, le Ministere de 1'Interieur a, par un telegramme du 4 juillet 1910, averti le Prefet des Bouches-du- Rhone que la police britannique venait d'envoyer dans 1'Inde Savarkar a bord du vapeur "Morea" ; que ce telegramme mentionne que "quel- ques revolutionnaires hindous, actuellement sur le Continent, pour- raient profiter de cette occasion pour f aciliter 1'evasion de cet etranger," et que le Prefet est prie "de vouloir bien prendre les dispositions necessaires pour eviter toute tentative de ce genre."
Attendu que le Directeur de la Surete generate a, de son cote, re- pondu, le 9 juillet 1910, a la lettre du Chef de la Police a Londres, en lui faisant connaitre qu'il a "donne les instructions necessaires, en vue d'eviter tout incident a 1'occasion du passage a Marseille du nomine Vinayak Damodar Savarkar, embarque a bord du vapeur Morea."
Attendu que, le 7 juillet, le "Morea" arriva a Marseille; que, le lendemain entre 6 et 7 heures du matin, Savarkar, ayant reussi a s'echapper, a gagne la terre a la nage et s'est mis a courir; qu'il fut arrete par un brigadier de la gendarmerie maritime francais, et ramene a bord du navire ; que trois personnes descendues du navire ont prete assistance au brigadier pour reconduire le fugitif a bord; que, le 9 juillet, le "Morea" quitta Marseille emmenant ce dernier.
Attendu que des declarations que le brigadier franc.ais a faites de- vant la police de Marseille, il resulte:
qu'il a vu le fugitif presque nu sortir par un hublot du vapeur se jeter a la mer et gagner le quai a la nage ;
qu'au meme instant, des personnes du bord se sont precipitees, en criant et en gesticulant, sur la passerrelle conduisant a terre pour se mettre a la poursuite de cet homme;
que, d'autre part, de nombreuses personnes se trouvant sur le quai se mirent a crier, "Arretez-le" ;
que le brigadier s'elanca aussitot a la poursuite du fugitif, et, le lejoignant apres un parcours de cinq cents metres environ, Tarreta.
Attendu que le brigadier declare qu'il ignorait absolument a qui il avait eu affaire, qu'il a cru simplement que Tindividu qui se sauvait, poursuivi par la clatneur publique, etait un homme de 1'equipage ayant peut-etre commis un delit a bord.
Attendu, quant a Tassi stance que lui ont pretee un homme de 1'equipage et deux agents de la police indienne, qu'il resulte des expli- cations fournies a ce sujet, qu'ils sont survenus apres 1'arrestation de Savarkar et que leur intervention n'a eu qu'un caractere secondaire;
518 ORIGINAL TEXTS
que, le brigadier ayant pris Savarkar par un bras pour le ramener vers le navire, le prisonnier le suivit docilement et que le brigadier n'a pas cesse de le tenir, assiste des personnes susmentionnees, jusqu'a la coupee du navire;
qu'il a declare, du reste, qu'il ne connaissait pas la langue anglaise;
qu'a juger de ce qui a etc relate, tout 1'incident n'a dure que quel- ques minutes.
Attendu qu'il est avere que le brigadier qui operait 1'arrestation n'ignorait pas la presence de Savarkar a bord du navire et qu'il avait eu, comme tous les agents et gendarmes frangais, pour consigne d'em- pecher de monter a bord tout Hindou qui ne serait pas porteur d'un billet de passage.
Attendu que les circonstances expliquent, du reste, que les personnes chargees a bord de surveiller Savarkar aient cru pouvoir compter sur 1'assistance des agents frangais.
Attendu qu'il est etabli qu'un Commissaire de la police f rangaise s'est presente a bord du navire, peu de temps apres son arrivee au port, et s'est mis, d'apres 1'ordre du Prefet, a la disposition du Commandant pour la surveillance a exercer;
que ce Commissaire a etc, en consequence, mis en relation avec 1'officier de police britannique charge, avec des agents, de la garde du prisonnier ;
que le Prefet de Marseille, comme il resulte d'un telegramme du 13 juillet 1910 au Ministre de 1'Interieur, declare avoir agi a cette occasion conformement aux instructions donnees par la Surete generate prescri- vant de prendre les dispositions necessaireg pour empecher 1'evasion de Savarkar.
Attendu que, d'apres ce qui precede, il est manifeste qu'il ne s'agit pas ici d'un cas ou Ton aurait eu recours a des manoeuvres fraudu- leuses ou a des actes de violence pour se mettre en possession d'une personne refugiee sur un territoire etranger et qu'il n'y a eu, dans les faits de 1'arrestation, de la livraison et de la conduite de Savarkar dans 1'Inde, rien de nature a porter atteinte a la souverainete de la France; que tous ceux qui ont pris part a 1'incident ont ete certaine- ment de bonne foi et n'ont nullement cru s'ecarter de la legalite.
Attendu que, dans les circonstances ci-dessus relatees, la conduite du brigadier n'ayant pas ete desavouee par ses chefs avant le 9 juillet au matin, c'est-a-dire avant le depart du "Morea" de Marseille, les agents britanniques ont pu naturellement croire que le brigadier avait agi en conformite de ses instructions ou que sa conduite avait ete approuvee.
Attendu qu'en admettant qu'une irregularite ait ete commise par Tarrestation et la remise de Savarkar aux agent britanniques, il n'existe pas, en droit international, de regie en vertu de laquelle la Puissance qui a, dans des conditions telles que celles qui ont ete indiquees, un prisonnier en son pouvoir, devrait le rendre a raison d'une faute com- mise par 1'agent etranger qui le lui a livre.
THE SAVARKAR CASE 519
PAR CES MOTIFS:
Le Tribunal Arbitral decide que le Gouvernement de Sa Majeste Britannique n'est pas tenu de restituer le nomine Vinayak Damodar Savarkar au Gouvernement de la Republique franchise.
Fait a La Haye, dans 1'Hotel de la Cour Permanente d' Arbitrage, le 24 fevrier 1911.
Le President: A. BEERNAERT Le Secretaire general: MICHIELS VAN VERDUYNEN
Agreement for Arbitration, October 25, jp/o1
Le Gouvernement de la Republique Frangaise et le Gouvernement de Sa Majeste Britannique s'etant mis d'accord, par un echange de notes en date des 4 et 5 octobre 1910, a 1'effet de soumettre a 1'arbitrage, d'une part, les questions de fait et de droit soulevees par Tarrestation et la reintegration, a bord du paquebot Morea, le 8 Juillet 1910, a Marseille, de 1'Indien Vinayak Damodar Savarkar, evade de ce bati- ment, ou il etait detenu ; d'autre part, la reclamation du Gouvernement de la Republique tendant a la restitution de Savarkar ;
Les soussignes, dument autorises a cet effet, sont convenus du Com- promis suivant:
ARTICLE PREMIER
Un Tribunal Arbitral, compose comme il est dit ci-apres, sera charge de decider la question suivante :
Vinayak Damodar Savarkar doit-il, conformement aux regies du droit international, etre ou non restitue par le Gouvernement de Sa Majeste Britannique au Gouvernement de la Republique Frangaise?
ART. 2
Le Tribunal Arbitral sera compose de cinq Arbitres pris parmi les membres de la Cour permanente de La Haye. Les deux Parties con- tractantes se mettront d'accord sur la composition du Tribunal. Chacune d'elles pourra designer comme Arbitre un de ses nationaux.
ART. 3
Le 6 decembre 1910, chacune des Hautes Parties contractantes remet- tra, au Bureau de la Cour permanente, quinze exemplaires de son memoire, avec les copies certifiees conformes de toutes pieces et docu- ments qu'elle compte invoquer dans la cause. Le Bureau en assurera sans retard la transmission aux Arbitres et aux Parties: savoir, de deux exemplaires pour chaque Arbitre, de trois exemplaires pour chaque Partie. Deux exemplaires resteront dans les archives du Bureau.
lOfficial report, p. 5.
520 ORIGINAL TEXTS
Le 17 Janvier 1911, les Hautes Parties contractantes deposeront dans la meme forme leurs contre-memoires, avec pieces a 1'appui.
Ces contre-memoires pourront donner lieu a des repliques, qui devront etre presentees dans un delai de quinze jours apres la remise des contre-memoires.
Les delais fixes par le present Arrangement pour la remise des memoires, contre-memoires et repliques pourront etre etendus par une entente mutuelle des Hautes Parties contractantes.
ART. 4
Le Tribunal se reunira a La Haye le 14 fevrier 1911.
Chaque Partie sera representee par un Agent, avec mission de servir d'intermediaire entre elle et le Tribunal.
Le Tribunal Arbitral pourra, s'il 1'estfme necessaire, demander a Fun ou a 1'autre des Agents de lui fournir des explications orales ou ecrites, auxquelles 1* Agent de la Partie adverse aura le droit de repondre.
II aura aussi la faculte d'ordonner la comparution de temoins.
ART. 5
Les Parties peuvent faire usage de la langue franchise ou de la langue anglaise. Les membres du Tribunal pourront se servir, a leur choix, de la langue franchise ou de la langue anglaise. Les decisions du Tribunal seront redigees dans les deux langues.
ART. 6
La decision du Tribunal devra etre rendue dans le plus bref delai possible, et dans tous les cas, dans les trente jours qui suivront la date de la reunion a La Haye ou celle de la remise des explications ecrites qui lui auraient etc fournies a sa requete. Ce delai pourrait, cependant, etre prolonge a la demande du Tribunal si les deux Hautes Parties contractantes y consentaient.
Fait a Londres, en double exemplaire, le 25 octobre 1910.
(L. S.) Signer PAUL CAMBON (L. S.) Signe: E. GREY
Supplementary Note of October 25, ip/o, to tlie Agreement for Arbi- tration, Addressed by His Excellency the Ambassador of the French Republic at London to His Excellency the Principal Secretary of State of His Britannic Majesty in the Department of Foreign Affairs1
2 5 Octobre ipro.
MONSIEUR LE MINISTRE: J'ai Thonneur d'accuser reception a Votre Excellence de sa note de ce jour relative a Tarrangement que nous avons signe aujourd'hui en vue de soumettre a 1'arbitrage cer-
1Official report, p. 9.
THE SAVARKAR CASE 521
taines questions concernant 1'arrestation et la restitution de Vinayak Damodar Savarkar, a Marseille, le 8 juillet dernier. Je suis autorise a constater, avec Votre Excellence, 1'entente d'apres laquelle toutes les questions qui pourraient s'elever au cours de cet arbitrage, et qui ne seraient pas prevues par le susdit arrangement, seront reglees con- formement aux stipulations de la Convention, pour le reglement paci- fique des conflicts internationaux, signee a la Haye le 18 octobre 1907.
II est egalement entendu que chaque partie supportera ses propres frais et une part egale des depenses du Tribunal.
Veuillez agreer, etc.
Signe: PAUL CAMBON
THE CANEVARO CASE
Award of the Tribunal, May 3, 1912*
Considerant que, par tin Compromis en date du 25 avril 1910, le Gouvernement Italien et le Gouvernement du Perou se sont mis d'accord a 1'effet de soumettre a 1'arbitrage les questions suivantes :
"Le Gouvernement du Perou doit-il payer en especes ou bien d'apres les dispositions de la loi peruvienne sur la dette interieure du 12 juin 1889 les lettres a ordre (cambiali, libramientos) dont sont actuellement possesseurs les f reres Napoleon, Carlo et Raphael Canevaro, qui furent tirees par le Gouvernement du Perou a 1'ordre de la maison Jose Cane- varo e hijos pour le montant de 43,140 livres sterling plus les interets legaux du montant susdit?"
"Les freres Canevaro ont-ils le droit d'exiger le total de la somme reclamee?"
"Le comte Raphael Canevaro a-t-il le droit d'etre considere comme reclamant italien?"
Considerant qu'en execution de ce Compromis, ont ete designes comme Arbitres:
Monsieur Louis Renault, Ministre plenipotentiairte, Membre 4e Tlnstitut, Prof esseur a la Faculte de droit de 1'Universite de Paris et a 1'Ecole des sciences politiques, Jurisconsulte du Ministere des Affaires Etrangeres, President;
Monsieur Guido Fusinato, Docteur en droit, ancien Ministre de Tlnstruction publique, Professeur honoraire de droit international a 1'Universite de Turin, Depute, Conseiller d'Etat ;
Son Excellence Monsieur Manuel Alvarez Calderon, Docteur en droit, Professeur a TUniversite de Lima, Envoye extraordinaire et Ministre plenipotentiaire du Perou a Bruxelles et a Berne.
Considerant que les deux Gouvernements ont respectivement designe comme Conseils:
Le Gouvernement Royal Italien:
Monsieur le Professeur Vittorio Scialoja, Senateur du Royaume d'ltalie et, comme conseil adjoint, le Comte Giuseppe Francesco Cane- varo, Docteur en droit,
Le Gouvernement Peruvien:
Monsieur Manuel Maria Mesones, Docteur en droit, Avocat.
Considerant que, conformement aux dispositions du Compromis, les Memoires et Contre-memoires ont ete dument echanges entre les Parties et communiques aux Arbitres ;
Considerant que le Tribunal s'est reuni a La Haye le 20 avril 1912.
Considerant que, pour la simplification de Texpose que suivra, il
iQfficial report, p. 14.
THE CANEVARO CASE 523
vaut mieux statuer d'abord sur la troisieme question posee par le Compromis, c'est-a-dire sur la qualite de Raphael Canevaro ;
Considerant que, d'apres la legislation peruvienne (Art. 34 de la Constitution), Raphael Canevaro est Peruvien de naissance comme etant ne sur le territoire peruvien,
Que, d'autre part, la legislation italienne (Art. 4 du Code civil) lui attribue la nationalite italienne comme etant ne d'un pere italien ;
Considerant qu'en fait, Raphael Canevaro c'est, a plusieurs reprises, comporte comme citoyen peruvien, soit en posant sa candidature au Senat ou ne sont admis que les citoyens peruviens et ou il est alle defendre son election, soit surtout en acceptant les f onctions de Consul general des Pays-Bas, apres avoir sollicite Tautorisation du Gouverne- ment, puis du Congres peruvien ;
Considerant que, dans ces circonstances, quelle que puisse etre en Italic, au point de vue de la nationalite, la condition de Raphael Cane- varo, le Gouvernement du Perou a le droit de le considerer comme citoyen peruvien et de lui denier la qualite de reclamant italien.
Considerant que la creance qui a donne lieu a la reclamation soumise au Tribunal resulte d'un decret du dictateur Pierola du 12 decembre 1880, en vertu duquel ont ete crees, a la date du 23 du meme mois, des bons de paiement (libramientos) a 1'ordre de la maison "Jose Cane- varo e hijos" pour une somme de 77,000 livres sterling, payables a diverses echeances ;
Que ces bons n'ont pas ete payes aux echeances fixees, qui ont coincide avec Toccupation ennemie;
Qu'un acompte de 35,000 livres sterling ay ant ete paye a Londres en 1885, il reste une creance de 43,140 livres sterling sur le sort de laquelle il s'agit de statuer ;
Considerant qu'il resulte des f aits de la cause que la maison de com- merce 4<Jose Canevaro e hijos," etablie a Lima, a ete reconstitute en 1885 apres la mort de son fondateur, survenue en 1883 ;
Qu'elle a bien conserve la raison sociale "Jose Canevaro e hijos," mais qu'en realite, comme le constate Tacte de liquidation du 6 fevrier 1905, elle etait composee de Jose Francisco et de Cesar Canevaro, dont la nationalite peruvienne n'a jamais ete contestee, et de Raphael Cane- varo, dont la meme nationalite, aux termes de la loi du Perou, vient d'etre reconnue par le Tribunal;
Que cette societe, peruvienne a un double titre et par son siege social et par la nationalite de ses membres, a subsiste jusqu'a la mort de Jose Francisco Canevaro, survenue en 1900;
Considerant que c'est au cours de Texistence de cette societe que sont intervenues les lois peruviennes du 26 octobre 1886, du 12 juin 1889 et du 17 decembre 1898 qui ont edicte les mesures les plus graves en ce qui concerne les dettes de 1'Etat peruvien, mesures qu'a paru necessiter Tetat desastreux auquel le Perou avait ete reduit par les malheurs de la guerre etrangere et de la guerre civile ;
Considerant que, sans qu'il y ait lieu pour le Tribunal d'apprecier en elles-memes les dispositions des lois de 1889 et de 1898, certainement
524 ORIGINAL TEXTS
tres rigoureuses pour les creanciers du Perou, leurs dispositions s'imposaient sans aucun doute aux Peruvians individuellement comme aux societes peruviennes, qu'il y a la un pur fait que le Tribunal n'a qu'a constater.
Considerant que, le 30 septembre 1890, la Societe Canevaro, par son representant Giacometti, s'adressait au Senat pour obtenir le paiement des 43,140 livres sterling qui auraient etc, suivant lui, fournis pour satisfaire aux necessites de la guerre;
Que, le 9 avril 1891, dans une lettre adressee au President du Tribunal des Comptes, Giacometti assignait une triple origine a la creance: un solde du a la maison Canevaro par le Gouvernement comme prix d'armements achetes en Europe au temps de la guerre; lettres tirees par le Gouvernement a la charge de la consignation du guano aux Etats-Unis, protestees et payees par Jose Francisco Cane- varo ; argent f ourni pour 1'armee par le General Canevaro ;
Qu'enfin, le ler avril 1891, le meme Giacometti, s'adressant encore au President du Tribunal des Comptes, invoquait 1'article 14 de la loi du 12 juin 1889 que, disait-il, le Congres avait votee "animado del mas patriotico proposito," pour obtenir le reglement de la creance ;
Considerant que le representant de la maison Canevaro avait d'abord assigne a la creance une origine manifestement erronee, qu'il ne s'agissait nullement de fournitures ou d'avances faites en vue de la guerre contre le Chili, mais, comme il a ete reconnu plus tard, unique- ment du remboursement de lettres de change anterieures qui, tirees par le Gouvernement peruvien, avaient ete protestees, puis acquittees par la maison Canevaro;
Que c'est en presence de cette situation qu'il convient de se placer;
Considerant que la maison Canevaro reconnaissait bien, en 1890 et en 1891, qu'elle etait soumise a la loi de 1889 sur la dette interieure, qu'elle cherchait seulement a se placer dans le cas de profiter d'une disposition favorable de cette loi au lieu de subir le sort commun des creanciers ;
Que sa creance ne rentre pas dans les dispositions de Tarticle 14 de la dite loi qu'elle a invoquee, ainsi qu'il a ete dit plus haut ; qu'il ne s'agit pas, dans Tespece, d'un depot recu par le Gouvernement, ni de lettres de change tirees sur le Gouvernement, acceptees par lui et reconnues legitimes par le Gouvernement "actuel," mais d'une operation de comptabilite n'ayant pas pour but de procurer des ressources a TEtat, mais de regler une dette anterieure ;
Que la creance Canevaro rentre, au contraire, dans les termes tres comprehensif s de 1'article ler, n°. 4 de la loi qui mentionnent les ordres de paiement (libramientos) , bons, cheques, lettres et autres mandats de paiement emis par les bureaux nationaux jusqu'en Janvier 1880; qu'on peut, a la verite, objecter que ce membre de phrase semble devoir laisser en dehors le creance Canevaro qui est du 23 decembre 1880; mais qu'il importe de faire remarquer que cette limitation quant a la date avait pour but d'exclure les creances nees des actes du dictateur Pierola, conformement a la loi de 1886 qui a declare nuls tous les
THE CANEVARO CASE 525
actes de ce dernier ; qu'ainsi, en prenant a la lettre la disposition dont il s'agit, la creance Canevaro ne pourrait etre invoquee a aucun titre, meme pour obtenir la faible proportion admise par la loi de 1889;
Mais considerant que, d'une part, il resulte des circonstances et des termes du Compromis que le Gouvernement peruvien reconnait lui- meme comme non applicable a la creance Canevaro la nullite edictee par la loi de 1886; que, d'autre part, la nullite du decret de Pierola laisserait subsister la creance anterieure nee du paiement des lettres de change;
Qu'ainsi, la creance resultant des bons de 1880 delivres a la maison Canevaro doit etre consideree comme rentrant dans la categoric des titres enumeres dans Tarticle ler, n°. 4, de la loi.
Considerant qu'il a etc soutenu d'une maniere generate que la dette Canevaro ne devait pas subir Fapplication de la loi de 1889, qu'elle ne pouvait etre consideree comme rentrant dans la dette interieure, parce que tous ses elements y repugnaient, le titre etant a ordre, stipule payable en livres sterling, appartenant a des Italians ;
Considerant qu'en dehors de la nationalite des personnes, on com- prend que des mesures financieres, prises dans 1'interieur d'un pays, n'atteignent pas les actes intervenus au dehors par lesquels le Gouverne- ment a fait directement appel au credit etranger; mais que tel n'est pas le cas dans 1'espece: qu'il s'agit bien, dans les titres delivres en decembre 1880, d'un reglement d'ordre interieur, de titres crees a Lima, payables a Lima, en compensation d'un paiement fait volon- tairement dans 1'interet du Gouvernement du Perou ;
Que cela n'est pas infirme par les circonstances que les titres etaient a ordre, payables en livres sterling, circonstances qui n'empechaient pas la loi peruvienne de s'appliquer a des titres crees et payables sur le territoire ou elle commandait;
Que 1'enumeration de 1'article ler n°. 4 rappelee plus haut comprend des titres a ordre et que 1'article 5 prevoit qu'il peut y avoir des con- versions de monnaies a faire;
Qu'enfin il a ete constate precedemment que, lorsque sont intervenues les mesures financieres qui motivent la reclamation, la creance apparte- nait a une societe incontestablement peruvienne.
Considerant que la creance de 1880 appartient actuellement aux trois f reres Canevaro dont deux sont certainement Italiens ;
Qu'il convient de se demander si cette circonstance rend inapplicable la loi de 1889;
Considerant que le Tribunal n'a pas a rechercher ce qu'il faudrait decider si la creance avait appartenu a des Italiens au moment ou intervenait la loi qui reduisait dans de si grandes proportions les droits des creanciers du Perou et si les memes sacrifices pouvaient etre imposes aux etrangers et aux nationaux ;
Mais qu'en ce moment, il s'agit uniquement de savoir si la situation faite aux nationaux, et qu'ils doivent subir, sera modifiee radicalement, parce qu'aux nationaux sont substitues des etrangers sous une forme ou sous une autre ;
526 ORIGINAL TEXTS
Qu'une telle modification ne saurait etre admise aisement, parcc qu'elle serait contraire a cette idee simple que 1'ayant-cause n'a pas plus de droit que son auteur.
Considerant que les f reres Canevaro se presentent comme detenant les titres litigieux en vertu d'un endossement;
Que Ton invoque a leur profit 1'effet ordinaire de 1'endossement qui est de faire considerer le porteur d'un titre a ordre comme creancier direct du debiteur, de telle sorte qu'il peut repousser les exceptions qui auraient ete opposables a son endosseur;
Considerant que, meme en ecartant la theorie d'apres laquelle, en dehors des effets de commerce, 1'endossement est une cession entiere- ment civile, il y a lieu, dans 1'espece, d'ecarter 1'effet attribue a 1'endossement ;
Qu'en effet, si la date de 1'endossement des titres de 1880 n'est pas connue, il est incontestable que cet endossement est de beaucoup pos- terieur a 1'echeance ; qu'il y a lieu, des lots, d'appliquer la disposition du Code de commerce peruvien de 1902 (art. 436) d'apres laquelle 1'endossement posterieur a 1'echeance ne vaut que comme cession ordinaire ;
Que, d'ailleurs, le principe susrappele au sujet de 1'effet de 1'en- dossement n'empeche pas d'opposer au porteur les exceptions tirees de la nature meme du titre, qu'il a connues ou du connaitre ; qu'il est inutile de faire remarquer que les freres Canevaro connaissaient par- faitement le caractere des titres endosses a leur profit.
Considerant que, si les freres Canevaro ne peuvent, en tant que possesseur de la creance en vertu d'un endossement, pretendre a une condition plus favorable que celle de la societe dont ils tiendraient leurs droits, il est permis de se demander si leur situation ne doit pas etre differente en les envisageant en qualite d'heritiers de Jose Fran- cisco Canevaro, comme les presente une declaration notariee du 6 f evrier 1905 ;
Qu'il y a, en effet, cette difference entre le cas de cession et le cas d'heredite que, dans ce dernier, ce n'est pas par un acte de pure volonte que la creance a passe d'une tete sur une autre ;
Que, neanmoins, on ne trouve aucrne raison decisive pour admettre que la situation a change par ce fait que des Italiens ont succede a un Peruvien et que les heritiers ont un titre nouveau qui leur permet de se prevaloir de la creance dans des conditions plus favorables que le de cujus;
Que c'est une regie generale que les heritiers prennent les biens dans 1'etat ou ils se trouvaient entre les mains du defunt.
Considerant qu'enfin il a ete soutenu que la loi peruvienne de 1889 sur la dette interieure, sans changer les creances existantes contre le Perou, avait seulement donne au Gouvernement la faculte de s'acquitter de ses dettes d'une certaine maniere quand les creanciers en reclame- raient le paiement, que c'est au moment ou le paiement est reclame qu'il faut se placer pour savoir si 1'exception resultant de la loi peut etre invoquee contre toutes personnes, specialement contre les etrangers ;
THE CANEVARO CASE 527
Que, les proprietaires actuals de la creance etant des Italians, il y aurait lieu pour le Tribunal de se prononcer sur le point de savoir si la loi peruvienne de 1889, malgre son caractere exceptionnel, peut etre imposee aux etrangers;
Mais considerant que ce point de vue parait en disaccord avec les termes generaux et 1'esprit de la loi de 1889 ;
Que le Congres, dont il ne s'agit pas d'apprecier Toeuvre en elle-meme, a entendu liquider completement la situation financiere du Perou, sub- stituer les titres qu'il creait aux titres anciens ;
Que cette situation ne peut etre modifiee, parce que les creanciers se presentent plus ou moins tot pour le reglement de leurs creances ;
Que telle etait la situation de la maison Canevaro, peruvienne au moment ou la loi de 1889 entrait en vigueur, et que, pour les motifs deja indiques, cette situation n'a pas etc changee en drqit par le fait que la creance a, par endossement ou par heritage, passe a des Italiens.
Considerant, en dernier lieu, qu'il a ete allegue que le Gouvernement peruvien doit indemniser les reclamants du prejudice que leur a occasionne son retard a s'aquitter de la dette de 1880, que le prejudice consiste dans la difference entre le paiement en or et le paiement en titres de la dette consolidee; qu'ainsi le Gouvernement peruvien serait tenu de payer en or la somme reclamee, en admettant meme que la loi de 1889, se soit regulierement appliquee a la creance ;
Considerant que le Tribunal estime qu'en entrant dans cet ordre d'idees, il sortirait des termes du Compromis qui le charge seulement de decider si le Gouvernement du Perou doit payer en argent comptant ou d'apres les dispositions de la loi peruvienne du 12 juin 1889 ; que, le Tribunal ayant admis cette derniere alternative, la premiere solution doit etre exclue; qu'il n'est pas charge d'apprecier la responsabilite qu'aurait encourue a un autre titre le Gouvernement peruvien, de rechercher notamment si le retard a payer peut ou non etre excuse par les circonstances difficiles dans lesquelles il se trouvait, etant donne surtout qu'il s'agirait en realite d'une responsabilite encourue envers tine maison peruvienne qui etait creanciere quand le retard s'est produit.
Considerant qu'il y a lieu de rechercher quel etait le montant de la creance Canevaro au moment ou est entree en vigueur la loi de 1889;
Qu'elle se composait d'abord du capital de 43,140 livres sterling, mais qu'il faut y ajouter les interets ayant couru jusque la;
Que les interets qui etaient, d'apres le decret du 23 decembre 1880, de 4% par an jusqu'aux echeances respectives des bons delivres et qui etaient compris dans le montant de ces bons, doivent etre, a partir de ces echeances, calcules au taux legal de 6% (Art. 1274 du Code civil peruvien) jusqu'au l*r Janvier 1889;
Qu'on obtient ainsi une somme de £16,577.2.2 qui doit etre jointe au principal pour former la somme globale devant etre remboursee en titres de la dette consolidee et devant produire un interet de 1% payable en or a partir du ler Janvier 1889 jusqu'au paiement definitif ;
Considerant que, d'apres ce qui a ete decide plus haut relativement a la situation de Raphael Canevaro, c'est seulement au sujet de ses deux f reres que le Tribunal doit statuer.
528
ORIGINAL TEXTS
Considerant qu'il appartient au Tribunal de regler le mode d'exccu- tion de sa sentence.
PAR CES MOTIFS,
Le Tribunal arbitral decide que le Gouvernement Peruvien devra, le 31 juillet 1912, remettre a la Legation dTtalie a Lima pour le compte des freres Napoleon et Carlo Canevaro:
1°. en titres de la dette interieure (1%) de 1889, le montant nominal de trente-neuf mille huit cent onze livres sterling huit sh. un p. (£39,811.8.1.) centre remise des deux tiers des titres delivres de 23 decembre 1880 a la maison Jose Canevaro e hijos ;
2°. en or, la somme de neuf mille trois cent quatre-vingt huit livres sterling dix-sept sh. un p. (£9,388.17.1.), correspondant a 1'interet de \% du ler Janvier 1889 au 31 juillet 1912.
Le Gouvernement peruvien pourra retarder le paiement de cette der- niere somme jusqu'au ler Janvier 1913 a la charge d'en payer les in- terets a 6% a partir du ler aout 1912.
Fait a la Haye, dans THotel de la Cour Permanente d'Arbitrage, le 3 mai 1912.
Le President. Louis RENAULT Le Secretaire general: MICHIELS VAN VERDUYNEN
Agreement for Arbitration, April 2^,
Riuniti nel ministero delle rela- zioni estere del Peru i sottoscritti, conte Giulio Bolognesi, incaricato d'affari d'ltalia, ed il dottor don Meliton F. Porras, ministro delle relazioni estere del Peru, hanno convetiuto quanto segue:
II governo di S. M. il Re d'ltalia ed il governo della repub- blica del Peru, non avendo potuto mettersi d'accordo riguardo al reclamo formulato dal primo in nome dei signori conti Napoleone, Carlo e Raffaele Canevaro per il pagamento della somma di quaran- tatre mila cento quaranta lire ster- line, piu gli interessi legali che essi sollecitano dal governo del Peru,
Hanno determinato, conforme- mente all'art. 1° del trattato per-
1 Official report, p. 5.
Reunidos en el Ministerio de Relaciones Exteriores del Peru, los infrascritos Senores Conte Giulio Bolognesi, Encargado de Negocios de Italia, y doctor don Meliton F. Porras, Ministro del Ramo, ban convenido en lo siguiente :
El Gobierno de S. M. el Rey de Italia y el Gobierno de la Republica Peruana, no habiendo podido ponerse de acuerdo re- specto de la reclamacion formu- lada por el primero a nombre de los Senores Condes Napoleon, Carlos y Rafael Canevaro, para el pago de la suma de cuarenta y tres mil ciento cuarenta libras esterli- nas y sus intereses legal es, que ellos solicitan del Gobierno del Peru,
Han determinado, de conformi- dad con el art. 1° del Tratado
THE CANEVARO CASE
529
manente d'arbitrato esistente fra i due paesi, sottomettere questa controversia alia corte permanente d'arbitrato dell' A j a, la quale dovra giudicare in diritto i seguenti punti :
Deve il governo del Peru pagare in effettivo o in base alle dis- posizioni della legge peruana del debito interno del 12 giugno 1889 le cambiali di cui sono attual- mente possessor! i fratelli Napo- leone, Carlo e Raffaele Canevaro e che furono tratte dal governo del Peru all'ordine della Casa Jose Canevaro & Hijos per la somma di 43,140 lire sterline, piu gli in- teressi legal! di questa somma?
Hanno i fratelli Canevaro di- ritto ad esigere la totalita della somma reclarata?
Ha il conte Raffaele Canevaro diritto ad essere considerate recla- mante italiano?
II governo di S. M. il Re d'ltalia ed il governo della repub- blica del Peru si obbligano a nominare, entro quattro mesi di questo protocollo, i membri della corte arbitrate.
Entro sette mesi dalla costitu- zione della corte arbitrate ambe- due i governi le presenteranno Tesposizione completa della con- troversia, con tutti i documenti, prove, allegati e argomenti del caso ; ogni governo potra disporre di altri cinque mesi per presentare alia corte arbitrate la propria ris- posta all'altro governo, ed in questa sara permesso soltanto di riferirsi alle argomentazioni con- tenute nell'esposizione della parte contraria.
Si considerera allora terminata la discussione, a meno che la corte arbitrate richieda nuovi
Permanente de Arbitraje existente entre los dos paises, someter esta controversia a la Corte Perma- nente de Arbitraje de La Haye, la cual debera juzgar en derecho los siguientes puntos:
Debe el Gobierno del Peru pagar en efectivo, 6 con aseglo a las disposiciones de la ley peruana de deuda interna de 12 Junio de 1889, los libramientos de que son actualmente posedores los her- manos Napoleon, Carlos y Rafael Canevaro y que fueron girados par el Gobierno Peruano a la orden de la Casa Jose Canevaro y Hijos para la suma de 43,140 libras esterlinas y ademas los in- tereses legates de dicha suma?
Tienen los hermanos Canevaro derecho a exigir la totalidad de la suma reclamada?
Tiene don Rafael Canevaro derecho a ser considerado como reclamante italiano?
El Gobierno de S. M. el Rey de Italia y el Gobierno de la Republica Peruana se obligan a nombrar, dentro de cuatro meses contados desde la fecha de esto protocolo, los miembros de la Corte Arbitrate.
A los siete meses de la consti- tucion de la Corte Arbitral, ambos Gobiernos le presentaran la expo- sicion completa de la contraversia, con todos los documentos, prue- bas, alegatos y argumentos del caso; cada Gobierno podra dis- poner de otros cinco meses para presentar ante la Corte Arbitral su respuesta al otro Gobierno, y en dicha respuesta solamente sera pwermetido referirse a las alega- ciones contenidas en la exposici6n de la Parte Contraria.
Se considerera entonces termi- nada la discusion, a menos que la Corte Arbitral solicite neuvos
530 ORIGINAL TEXTS
document!, prove od allegati, che documentos, pruebas 6 alegatos,
dovranno essere presentati entro que deberan ser presentados dcn-
quattro mesi contati dal momento tro de cuatro meses contados
in cui Farbitro li chiede. desde el momento en que el Ar-
bitro los pida.
Se detti document!, prove od Si dichos documentos, pruebas
allegati non vengono presentati 6 alegatos no se habiesen presen-
entro questo termine, si pronun- tado en esto termino, se pronun-
ciera la sentenza arbitrate, come ciera la sentencia arbitral como
se non esistessero. si no existieren.
In f ede di che, i sottoscritti En f e de lo cual, los inf rascritos
hanno firmato il presente proto- firman el presente Protocolo,
collo, redatto in italiano ed in redacto en italiano y en espanol,
spagnuolo e vi hanno apposto i poniendo en el sus respectivos
loro rispettivi sigilli. sellos.
Fatto in doppio esemplare, in Hecho en doblo ejemplar, en
Lima, il venticinque aprile mille- Lima, el veinte y cinco de abril
novecentodieci. de mil noveciento dies.
GlULIO BOLOGNESI
M. F. PORRAS
Notes of April 27, 1910, concerning the Formation of the TribunoJ1
MlNISTERIO DE RELACIONES EXTERIORES
No. 18
Lima, 27 de abril de jpio. Senor encargado de negocios:
No habiendose estipulado en el protocolo que somete a arbitrage la reclamation presentada contra el gobierno del Peru por los hermanos Canevaro, la forma de constitucion de la corte arbitral, me es grato proponer a vuestra senoria que ella se haga de acuerdo con el articulo 87 de la convencion para el arreglo pacifico de los conflictos interna- cionales, firmada en La Haya en 1907.
Renuevo a vuestra senoria, las seguridades de mi mayor considera- tion.
M. F. PORRAS Al senor conde JULIO BOLOGNESI, encargado de negocios de Italia.
(TRADUCCI6N) LEGACI6N DE S. M. EL RfiY DE ITALIA
No. 273
Lima, 27 de abril de 1910. Senor ministro:
Tengo el honor de acusar a V. E. recibo de su nota No. 18, fecha de hoy, y me es grato aceptar la propuesta de V. E. de constituir la
iBoletin del Ministerio de Relaciones Exterior es (Peru), No. xxxv, p. 263.
THE CANEVARO CASE 531
corte arbitral de La Haya que debe dar su fallo en la controversia Canevaro, con arreglo a las disposiciones del articulo 87 de la conven- cion para el arreglo pacifico de los conflictos internacionales firmada en La Haya en 1907.
Quiera, senor ministro, aceptar las seguridades de mi mas alta y distinguida consideracion.
GlULIO BOLOGNESI
A S. E. el doctor don MELITON F. PORRAS, ministro de relaciones exteriores.
THE RUSSIAN INDEMNITY CASE
Award of the Tribunal, November n,
Par un Compromis signe a Constantinople le 22 juillet/4 aout 1910, le Gouvernement Imperial de Russie et le Gouvernement Imperial Ottoman sont convenus de soumettre a un Tribunal arbitral la de- cision definitive des questions suivantes:
"I. Oui ou non, le Gouvernement Imperial Ottoman est-il tenu de payer aux indemnitaires russes des dommages-interets a raison des dates auxquelles ledit gouvernement a precede au pavement des indem- nities fixees en execution de 1'article 5 du traite du 27 janvier/8 fevrier 1879, ainsi que du Protocole de meme date?"
"II. En cas de decision affirmative sur la premiere question, quel serait le montant de ces dommages-interets?"
Le Tribunal arbitral a etc compose de
Son Excellence Monsieur Lardy, Docteur en droit, Membre et ancien President de 1'Institut de droit international, Envoye extraordinaire et Ministre plenipotentiaire de Suisse a Paris, Membre de la Cour Permanente d'Arbitrage, Surarbitre ;
Son Excellence le Baron Michel de Taube, Adjoint du Ministre de Tlnstruction publique de Russie, Conseiller d'Etat actuel, Docteur en droit, associe de 1'Institut de droit international, Membre de la Cour Permanente d'Arbitrage;
Monsieur Andre Mandelstam, Premier Drogman de 1'Ambassade Imperiale de Russie a Constantinople, Conseiller d'Etat, Docteur en droit international, associe de Tlnstitut de droit international ;
Herante Abro Bey, Licencie en droit, Conseiller legiste de la Sub- lime-Porte ;
et Ahmed Rechid Bey, Licencie en droit, Conseiller legiste de la Sublime-Porte ;
Monsieur Henri Fromageot, Docteur en droit, associe de 1'Institut de droit international, Avocat a la Cour d'Appel de Paris, a fonc- tionne comme Agent de Gouvernement Imperial Russe et a ete assiste de
Monsieur Francis Rey, Docteur en droit, Secretaire de la Commis- sion Europeenne du Danube, en qualite de Secretaire;
Monsieur Edouard Clunet, Avocat a la Cour d'Appel de Paris, Membre et ancien President de 1'Institut de droit international, a fonctionne comme Agent du Gouvernement Imperial Ottoman et a ete assiste de
Monsieur Ernest Roguin, Professeur de Legislation comparee a TUniversite de Lausanne, Membre de 1'Institut de droit international, en qualite de Conseil du Gouvernement Ottoman;
iQfficial report, p. 79.
THE RUSSIAN INDEMNITY CASE 533
Monsieur Andre Hesse, Docteur en droit, Avocat a la Cour d'Appel de Paris, Depute, en qualite de Conseil du Gouvernement Ottoman;
Youssouf Kemal Bey, Professeur a la Faculte de droit de Constan- tinople, ancien Depute, Directeur de la Mission Ottomane d'etudes juridiques, en qualite de Conseil du Gouvernement Ottoman;
Monsieur C. Campinchi, Avocat a la Cour d'Appel de Paris, en qualite de Secretaire de 1' Agent du Gouvernement Ottoman.
Le Baron Michiels van Verduynen, Secretaire general du Bureau in- ternational de la Cour Permanente d* Arbitrage, a fonctionne comme Secretaire general et
le Jonkheer W. Roell, Premier secretaire du Bureau international de la Cour, a pourvu au Secretariat.
Apres une premiere seance a La Haye le 15 fevrier 1911, pour regler certaines questions de procedure, les Memoire, Contre-Memoire, Re- plique et Contre-Replique ont etc dument echange entre les Parties et communiques aux Arbitres, qui ont respectivement declare, ainsi que les Agents des Parties, renoncer a demander des complements de renseignements.
Le Tribunal arbitral s'est reuni de nouveau a La Haye les 28, 29, 30, 31 octobre, lar, 2, 5 et 6 novembre 1912,
et apres avoir entendu les conclusions orales des Agents et Conseils des Parties, il a rendu la Sentence suivante:
QUESTION PREJUDICIELLE
Vu la demande prejudicielle du Gouvernement Imperial Ottoman tendant a faire declarer la reclamation du Gouvernement Imperial Russe non recevable sans examen du fond, le Tribunal
attendu que le Gouvernement Imperial Ottoman base cette demande prejudicielle, dans ses conclusions ecrites, sur le fait "que, dans toute la correspondance diplomatique, ce sont les sujets russes individuelle- ment qui, beneficiant d'une stipulation faite en leurs noms, soit dans les Preliminaires de Paix signes a San Stefano le 19 fevrier 3 mars 1878, soit par Tarticle 5 du Traite de Constantinople du 27 Janvier 8 fevrier 1879, soit par le Protocole du meme jour, ont ete les creanciers directs des sommes capitales a eux adjugees, et que leurs titre a cet egard ont ete constitues par les decisions nominatives prises par la Commission ad hoc reunie a TAmbassade de Russie a Constantinople, decisions nominatives qui ont ete notifiees a la Sublime-Porte;
"Que, dans ces circonstances, le Gouvernement Imperial de Russie aurait du justifier de la survivance des droits de chaque indemnitaire, et de Tindividualite des personnes aptes a s'en prevaloir aujourd'hui, cela d'autant plus que la cession de certains de ces droits a ete com- muniquee au Gouvernement Imperial Ottoman";
"Que le Gouvernement Imperial de Russie aurait du agir de meme, dans Thypothese aussi ou PEtat russe aurait ete le creancier direct unique des indemnites ; cela parce que le dit Gouvernement ne sauratt meconnaitre son devoir de transmettre aux indemnitaires ou a leurs ayants-cause les sommes qu'il pourrait obterir dans le proces actuel a
534 ORIGINAL TEXTS
titre de dommages-interets moratoires, les indemnitaires se presentant, dans cette supposition, comme les beneficial res, si non comme les crean- ciers, de la stipulation faite dans leur interet;
"Que cependant, le Gouvernement Imperial de Russie n'a fourni aucune justification quant a la personnalite des indemnitaires ou de leurs ayants-droit, ni quant a la survivance de leurs preventions." (Contre-Replique Ottomane, p. 81 et 82.)
Attendu que le Gouvernement Imperial de Russie soutient, au con- traire, dans ses conclusions ecrites,
"Que la dette stipulee dans le Traite de 1879 n'en est pas moins une dette d'Etat a Etat; qu'il n'en saurait etre autrement de la responsa- bilite resultant de 1'inexecution de la dite dette; qu'en consequence le Gouvernement Imperial Russe est seul qualifie pour en donner quit- tance et, par la-meme, pour toucher les sommes destinees a etre payees aux indemnitaires; qu'au surplus, le Gouvernement Imperial Ottoman ne conteste pas au Gouvernement Imperial Russe la qualite de creancier direct de la Sublime-Porte;
"Que le Gouvernement Imperial Russe agit en vertu du droit qui lui est propre de reclamer des dommages-interets en raison de 1'inexe- cution d'un engagement pris vis-a-vis de lui directement ;
"Qu'il en justifie pleinement en etablissant cette inexecution, qui n'est d'ailleur pas contestee, et en apportant son titre, qui est le Traite de 1879 . . .;
"Que la Sublime-Porte, nantie de la quittance a elle regulierement delivree par le Gouvernement Imperial Russe, n'a pas a s'immiscer dans la repartition des sommes distributes ou a distribuer par ledrt Gouvernement entre ses sujets indemnitaires ; que c'est la une question d'ordre interieur, dont le Gouvernement Imperial Ottoman n'a pas a connaitre" (Replique Russe, pages 49 et 50).
Considerant que 1'origine de la reclamation remonte a une guerre, fait international au premier chef; que la source de I'indemnite est non seulement un Traite international mais un Traite de paix et les accords ayant pour objet 1'execution de ce Traite de paix; que ce traite et ces accords sont intervenus entre la Russie et la Turquie reglant entre elles, d'Etat a Etat, comme Puissances publiques ct souveraines, une question de droit des gens; que les preliminaires de paix ont fait rentrer les 10 millions de roubles attribues a titre de dom- mages et interets aux sujets russes victimes des operations de guerre en Turquie au nombre des indemnites "que S. M. 1'Empereur de Russie reclame et que la Sublime-Porte s'est engagee a lui rembourser" ; que ce caractere de creance d'Etat a Etat a etc confirme par le fait que les reclamations devaient etre examinees par une Commission exclusive- ment russe; que le Gouvernement Imperial de Russie a conserve la haute main sur 1'attribution, Tencaissement et la distribution des in- demnites, en sa qualite de seul creancier; qu'il importe peu de savoir si, en thecrrie, la Russie a agi en vertu de son droit de proteger ses nationaux ou a un autre titre, du moment ou c'est envers le Gouverne- ment Imperial Russe seul que la Sublime-Porte a pris ou a subi 1'en- gagement reclame d'elle:
THE RUSSIAN INDEMNITY CASE 535
Considerant que Pexecution des engagements est, entre Etats comme entre particuliers, le plus sur commentaire du sens de ces engagements ;
que, lors d'une tentative de 1'administration Ottomane des Finances de percevoir, en 1885, sur une quittance donnee par I'Ambassade de Russie a Constantinople lors du payement d'un acompte, le timbre proportionnel exige des particuliers par la legislation ottomane, la Russie a immediatement proteste et soutenu "que la dette etait con- tractee par le Gouvernement Ottoman vis-a-vis celui de Russie" . . . et "non pas une simple creance de particuliers decoulant d'un engage- ment ou contrat prive" (Note verbale russe du IS/27 mars 1885, Memoire Russe, annexe N°. 19, page 19) ; que la Sublime-Porte n'a pas insiste, et qu'en fait, les deux Parties ont constamment, dans leur pratique de plus de quinze ans, agi comme si la Russie etait la crean- ciere de la Turquie a 1'exclusion des indemnitaires prives;
que la Sublime-Porte a paye sans aucune exception tous les verse- ments successifs sur la seule quittance de rAmbassade de Russie a Constantinople agissant pour compte de son Gouvernement;
que la Sublime-Porte n'a jamais demande, lors des versements d'acomptes, si les beneficiaires existaient tou jours ou quels etaient leurs ayants-cause du moment, ni d'apres quelles normes les acomptes etaient repartis entre eux, laissant cette mission au seul Gouvernement Im- perial de Russie;
Considerant que la Sublime-Porte pretend, au fond, dans le litige actuel, precisement etre entierement liberee par les payements qu'elle a, en fait, effectues en dehors de toute participation des indemnitaires entre les mains du seul Gouvernement Imperial de Russie represente par son ambassade;
PAR CES MOTIFS:
Arrete
la demande prejudicielle est escartee.
Statuant ensuite sur le fond le Tribunal arbitral a rendu la Sentence suivante :
EN FAIT
Dans le Protocole signe a Andrinople le 19/31 Janvier 1878 et qui a mis fin par un armistice aux hostilites entre la Russie et la Turquie, se trouve la stipulation suivante:
"5°. La Sublime-Porte s'engage a dedommager la Russie des frais de la guerre et des pertes qu'elle a du s'imposer. Le mode, soit pecuniaire, soit territorial ou autre, de cette mdemnite sera regie ulterieurement."
L'article 19 des Preliminaires de paix signes a San Stefano le 19 fevrier/3 mars 1878 est ainsi concu:
"Les indemnite's de guerre ct les pertes iniposees a la Russie que S. M. TEmpereur de Russie reclame et que la Sublime-Porte s'est en- gagee a lui rembourser se composent de: a) 900 millions de roubles de frais de guerre . . . b) 400 millions de roubles de dommages
536 ORIGINAL TEXTS
infliges au littoral meridional . . . c) 100 millions de roubles de dommages causes au Caucase . . . d) dix millions de roubles de dommages et inter ets aux sujets et institutions russes en Turquie: total 1,400 millions de roubles."
Et plus loin : "Les dix millions de roubles reclames comme indemnite pour les sujets et institutions russes en Turquie seront payes a mesure que les reclamations des interesses seront examinees par I'ambassade de Russie & Constantinople et transmises d la Sublime-Porte."
Au congres de Berlin, a la seance du 2 juillet 1878, protocole N°. 11, il fut entendu que les 10 millions de roubles dont il s'agit ne re- gardaient pas 1'Europe, mais seulement les deux Etats interesses, et qu'ils ne seraient pas inseres dans le traite entre les Puissances repre- sentees a Berlin. En consequence la question fut reprise directement entre la Russie et la Turquie, qui stipulerent, dans le traite definitif de paix signe a Constantinople le 27 janvier/8 fevrier 1879, la disposition suivante :
Art. V. Les reclamations des sujets et institutions russes en Tur- quie a titre d'indemnite pour les dommages subis pendant la guerre seront payees a mesure qu'elles seront examinees par I'ambassade de Russie a Constantinople et transmises a la Sublime-Port. La totalite de ces reclamations ne pourra, en aucun cas, depasser le chiffre de vingt-six millions sept cent cinquante mille francs. Le terme d'une annee apres Techange des ratifications est fixe comme date a partir de laquelle les reclamations pourront etre presentees a la Sublime-Porte, et celui de deux ans comme date apres laquelle les reclamations ne seront plus admises.
Le meme jour, 27 janvier/8 fevrier 1879, dans le Protocole de signature du traite de paix, le Plenipotentiaire russe prince Lobanow declara que la somme de 26,750,000 francs specifiee a 1'article V : "con- stitue un maximum auquel la totalite des reclamations ne pourra vraisemblablement jamais atteindre; il ajoute qu'une commission ad hoc sera institute a I'ambassade de Russie pour examiner scruplueuse- ment les reclamations qui lui seront presentees, et que, d'apres les instructions de son Gouvernement, un delegue ottoman pourra prendre part a 1'examen de ces reclamations."
Les ratifications du traite de paix out ete echangees a Saint-Peters- bourg le 9/21 fevrier 1879.
La commission institute a 1'ambassade de Russie et composee de trois fonctionnaires russes commenca aussitot ses travaux. Le com- missaire ottoman s'abstint generalement d'y prendre part. Le mon- tant des pertes des sujets russes fut fixe par la commission a 6 millions 186,543 francs. Elles furent successivement notifiees a la Sublime- Porte entre le 22 octobre/3 novembre 1880 et le 29 janvier/10 fevrier 1881 ; leur montant ne fut pas conteste et Tambassade de Russie re- clama le pavement en meme temps qu'elle transmettait a la Sublime- Porte les dernieres decisions de la commission.
THE RUSSIAN INDEMNITY CASE 537
Le 23 septembre 1881, Tambassade transmet une "petition" de 1'avo- cat Rossolato, "mandataire special de plusieurs sujets russes" ayant a toucher des indemnites, petition adressee a 1'ambassade et mettant le Gouvernement Ottoman en demeure de s'entendre avec lui "dans un delai de huit jours a partir de la signification, sur le mode de paye- ment," declarant "le tenir d'ores ct deja responsable de tous dom- mages-interets et notamment des interets moratoires."
Par convention signee a Constantinople le 2/14 mai 1882, les deux gouvernements conviennent, art. ler, que I'indemnite de guerre, dont le solde avait etc fixe a 802,500,000 francs par Tart. IV du traite de paix de 1879 apres defalcation de la valeur des territoires cedes par la Tur- quie, ne porterait pas d'interets et serait payee sous forme de cent versements annuels de 350,000 livres turques soit environ 8 millions de francs.
Le 19 juin/ler juillet 1884, aucune somme n'ayant etc versee pour les indemnitaires, Fambassade "reclame formellement le payement in- tegral des indemnites qui ont etc adjugees aux sujets russes . . . ; elle se verra obligee, dans le cas contraire, a leur reconnaitre la faculte de pretendre, outre le capital, a des interets proportionnes au retard que subit le reglement de leur creance."
Le 19 decembre 1884, la Sublime- Porte verse un premier acompte de 50,000 livres turques, soit environ 1,150,000 fr.
En 1885 se produit 1'union de la Bulgarie et de la Roumelie orientale et la guerre serbo-bulgare. La Turquie ne paie aucun nouvel acompte. Une note de rappel en date de Janvier 1886 ayant etc sans resultat, 1'ambassade insiste, le 15/27 fevrier 1887; elle transmet une "petition" qui lui est parvenue d'indemnitaires russes, dans laquelle ils tiennent le Gouvernement Ottoman "responsable de ce surcroit de dommagcs qui resulte pour eux du retard apporte au payement de leurs indem- nites," et 1'ambassade ajoute: "Dc nouveaux ajournements obligeraient le Gouvernement Imperial a reclamer en faveur de ses nationaux des interets pour les retards que subit le reglement de leurs creances."
Apres des notes de rappel de juillet et decembre 1887 demeurees sans effet, I'ambassade se plaint le 26 janvier/7 fevrier 1888, de ce que la Turquie ait paye di verses creances posterieures aux obligations con- tractees envers les indemnitaires russes. Elle rappelle que "les arrieres se montent a la somme d'environ 215,000 livres turques, un seul verse- rnent de 50,000 livres turques ayant etc fait sur le total de 265,000 livres turques adjugees"; elle demande done "d'urgence que les sommes dues aux sujets russes soient immediatement, et avant tout autre payement, prelevees sur celles qui seront payees par X . . ." (un debiteur du Gouvernement Imperial Ottoman).
Le 22 avril 1889, la Turquie verse un second acompte de 50,000 livres.
Le 31 decembre 1890/12 Janvier 1891, Tambassade, constatant qu'il a'&e paye seulement 100,000 livres sur un total de 265,000, ecrit a la Sublime-Porte que le retard apporte au reglement de cette creance fait subir des pertes toujours croissantes aux nationaux russes; elle croit done devoir prier la Sublime-Porte "de provoquer des ordres im-
538 ORIGINAL TEXTS
mediats a qui de droit pour que la somme due . . . soit payee sans retard, anssi bien que les inter ets legaux au sujet desquels [1'ambassade] a eu Thonneur de prevenir la Sublime-Porte par note du 15/27 fevrier 1887."
En aout 1891 nouveau rappel. En octobre/novembre 1892, 1'am- bassade ecrit "que cela ne peut durer indefiniment ainsi"; que "les instances des sujets russes deviennent de plus en plus pressantes," que 'Tambassade a le devoir de s'en faire avec energie rinterprete, . . . qu'il s'agit la d'une obligation indiscutable et d'un devoir in- ternational a remplir . . .," que "le Gouvernement Ottoman ne saurait plus invoquer pour s'y soustraire Petat precaire de ses finances," et conclut en demandant un "prompt et definitif reglement de la creance . . ."
Le 2/14 avril 1893, un troisieme versement de 75,000 livres turques est effectue; la Sublime-Porte, en donnant avis de ce payement des le 27 mars, ajoute que, pour le reliquat, la moitie en sera inscrite au budget courant et 1'autre moitie au budget prochain ; "la question ainsi reglee met heureusement fin aux incidents auxquels elle avait donne lieu." La Porte espere des lors que 1'ambassade voudra bien, dans ses sentiments d'amitie sincere a Pegard de la Turquie, accepter definitive- ment le monopole du tumbeki a 1'instar des autres Puissances.
A cette occasion, et en rappelant que le Gouvernement Imperial Russe "sfest toujours montre amical et conciliant dans toutes les affaires touchant aux interets financiers de PEmpire ottoman," 1'am- bassade prend acte le 30 du meme mois des dispositions annoncees en vue du payement et consent a ce que les Russes faisant en Turquie le commerce des tumbeki soient soumis au regime nouvellement cree.
Un an plus tard, le 23 mai/4 juin 1894, n'ayant regu aucun verse- ment nouveau, 1'ambassadeur, apres avoir constate la non-execution de "1'arrangement" auquel il avait "consent! afin de faciliter au Gou- vernement Ottoman Taccomplissement de son obligation," se declare "place dans Timpossibilite d'accepter des promesses, des arrangements ou des atermoiements ulterieurs," et "oblige d'insister pour que ia totalite du reliquat du aux sujets russes, qui monte d, 91,000 livres turques, soit, sans plus de retard, verse a Tambassade . . . De recentes operations financieres viennent de mettre a la disposition [de la Sublime-Porte] des sommes importantes."
Le 27 octobre de la meme annee 1894, un versement de 50,000 livres turques est effectue, et la Sublime-Porte ecrit, deja le 3 du meme mois, a 1'ambassade : "Quant au reliquat de 41 mille livres turques, la Banque Ottomane en garantira le payement dans le cours de 1'exercice pro- chain."
En 1896, une correspondance est echangee entre la Sublime-Porte €t Tambassade sur la question de savoir si les revenus sur lesquels la Banque Ottomane devait prelever le reliquat ne sont pas deja engages a la Russie pour le payement de Tindemnite de guerre proprement dfte GU si la partie de ces revenus superieure a Tannuite affectee a rindem- nite de guerre ne peut pas etre employee a 1'indemnisation des sujets
THE RUSSIAN INDEMNITY CASE 539
russes victimes des evenements de 1877/8. Au cours de cette corre- spondance, la Sublime-Porte indique, dans les notes qu'elle adresse a 1'ambassade les 11 fevrier et 28 mai 1896, que le rehquat du s'eleve a la somme de 43,978 livres turques.
De 1895 a 1899, de graves evenements survenus en Asie-Mineure obligent la Turquie a provoquer un moratoire en faveur de la Banque Ottomane sur sa demande; 1'insurrection des Druses, celle de la Crete qui est suivie de la guerre turco-grecque de 1897, des insurrections en Macedoine amenent a diverses reprises la Turquie a mobiliser des troupes et meme des armees.
Pendant trois ans, aucune correspondance n'est cchangee, et, lorsqu'elle reprend, la Sublime-Porte indique de nouveau le chiffre de 43,978 livres turques, comme le montant du reliquat des indemnites, dans les notes qu'elle adresse a 1'ambassade les 19 juillet 1899 et 5 juillet 1900. A son tour, 1'ambassade, dans ses notes de 25 avril/8 mai 1900 et 3/16 mars 1901, indique le meme chiffre mais se plaint de ce que les ordres donnes dans diverses provinces "pour le payement des 43,978 livres turques, montant du reliquat de Findemnite due aux sujets russes," n'ont pas ete suivis d'effet, et de ce que la Banque Ottomane n'a rien verse; elle prie instamment la Sublime-Porte de vouloir bien donner a qui de droit des ordres categoriques pour le payement, sans plus de retard, des sommes susmentionnees."
Apres qu'en mai 1901 la Sublime-Porte eut annonce que le Departe- ment des Finances avait ete invite a regler dans le courant du mois le reliquat de rindemnite, la Banque Ottomane avisait enfin, les 24 fevrier et 26 mai 1902, 1'ambassade de Russie qu'elle avait rec.u et tenait a la disposition de 1'ambassade 42,438 livres turques sur le reliquat de 43,978 livres.
L'ambassade, en accusant deux mois plus tard reception de cet envoi a la Sublime- Porte le 23 juin/6 juillet 1902, faisait observer "que le Gouvernement Imperial Ottoman a mis plus de vingt ans pour s'ac- quitter, et imparfaitement encore, d'une dette dont le reglement im- mediat s'imposait a tous les points de vue, un solde de 1,539 livres turques restant tou jours impaye. Se referant, par consequent, a ses notes des 23 septembre 1881, 15/27 fevrier 1887 et 31 decembre 1890/ 12 Janvier 1891 au sujet des interets a courir sur la dite creance, restee si longtemps en souffrance" 1'ambassade transmet une requete par laquelle les indemnitaires reclament, en substance, des interets composes d 12% depuis le ler Janvier 1881 jusqu'au 15 mars 1887, et a 9% depuis cette date, a laquelle le taux de 1'interet legal a ete abaisse par une loi ottomane. La somme reclamee par les signataires s'elevait a une vingtaine de millions de francs au printemps de 1902 pour un capital primitif de 6,200,000 francs environ. La note se terminait comme suit: "L'ambassade imperiale se plait a croire que la Sublime-Porte n'hesitera pas a reconnaitre en principe le bien fonde de la reclama- tion exposee dans cette requete; dans le cas pourtant ou la Sublime- Porte trouverait des objections a soulever contre le montant de la somme reclamee par les sujets russes, Tambassade imperiale ne verrait
540 ORIGINAL TEXTS
pas d'inconvenients a deferer I'examen des details a une commission composee de delegues Russes et Ottomans."
La Sublime- Porte repond le 17 de ce meme mois de juillet 1902 que Tart. V du Traite de paix de 1879 et le protocole de meme date ne stipulent pas d'interets et qu'a la lumiere des negociations diploma- tiques qui ont eu lieu a ce sujet, elle etait loin de s'attendre a voir formuler au dernier moment de la part des indemnitaires de telles demandes, dont Teffet serait de rouvrir une question qui se trouvait heureusement terminee. L'ambassade replique le 3/16 fevrier 1903 en insistant "sur le payement des dommages-interets reclames par ses ressortissants. II n'y a que le montant de ces dommages qui pourrait faire Tobjet d'une enquete." — Sur une note de rappel en date du 2/15 aout 1903, la Sublime-Porte repond le 4 mai 1904 en maintenant sa maniere de voir et en se declarant toutefois disposee a deferer la ques- tion a un arbitrage a La Haye dans le cas ou Ton insisterait sur la reclamation.
Au bout de quatre ans, 1'ambassade accepte cette suggestion par note du 19 mars/ler avril 1908.
Le compromis d'arbitrage a etc signe a Constantinople le 22 juillet /4 aout 1910.
Quant au petit solde de 1,539 livres turques, il avait ete mis par la Banque Ottomane en decembre 1902 a la disposition de 1'ambassade de Russie qui 1'a refuse et il demeure consigne a la disposition de 1'ambassade.
II
EN DROIT
1. Le Gouvernement Imperial de Russie base sa demande sur "la responsabilite des Etats pour inexecution de dettes pecuniaires" ; cette responsabilite implique, selon lui, '^obligation de payer des dom- mages-interets et specialement les interets des sommes indument re- tenues"; "1'obligation de payer des interets moratoires" est "la mani- festation pratique, en matiere de dettes d'argent," de la responsabilite des Etats (Replique Russe, pp. 27 et 51). "La meconnaissance de ces principes serait aussi contraire a la notion meme du droit des gens que dangereuse pour la securite des relations pacifiques; en effet, en de- clarant PEtat debiteur irresponsable du delai qu'il inflige a son crean- cier, on lui reconnaitrait, par la meme, la liberte de n'ecouter que son caprice pour s'executer; ... on obligerait, d'autre part, 1'Etat creancier a recourir a la violence contre une semblable prevention . . . et a ne rien attendre d'un pretendu droit des gens manifeste- ment incapable d'assurer le respect de la parole donnee" (Memoire Russe, p. 29).
En d'autres termes, et toujours dans Topinion du Gouvernement Imperial de Russie, "il ne s'agit nullement ici d'interets conventionnels, c'est-a-dire n6s d'une stipulation particuliere . . ." mais "1'obli- gation incombant au Gouvernement Imperial Ottoman de payer des interets moratoires est nee du retard a executer, e'est-a-dire de 1'in-
THE RUSSIAN INDEMNITY CASE 541
execution partielle du Traite de paix; cette obligation est bien nee, il est vrai, a Toccasion du traite de 1879, mais elle provient ex post facto d'une cause nouvelle et accidentelle, qui est la faute de la Sublime- Porte a remplir ses engagements comme elle s'y etait obligee." (Me- moire Russe, p. 29; Replique Russe, pp. 22 et 27.)
2. Le Gouvernement Imperial Ottoman, tout en admettant en termes cxplicites le principe general de la responsabilite des Etats a raison de I'inexecution de leurs engagements (Contre-Replique, p. 29, No. 286 Note et p. 52, No. 358) , soutient, au contraire, qu'en droit international public, des interets moratoires n'existent pas "sans stipulation ex- presse" ( Contre-Memoire Ottoman, p. 31, No. 83, et p. 34, No. 95) ; qu'un Etat "n'est pas un debiteur comme un autre" (Ibidem, p. 33, No. 90), et que, sans songer a soutenir "qu'aucune regie observable entre particuliers ne puisse etre appliquee entre Etats" (Contre-Rc- plique Ottomane, p. 26, No. 275), on doit tenir compte de la situation sui generis de 1'Etat puissance publique; que di verses legislation (par exemple la loi franchise de 1831 qui institue une prescription extinctive de cinq ans pour les dettes de 1'Etat, le droit remain qui pose le prin- cipe "Fiscus ex suis contractibus usuras non dat," Lex 17, paragr. 5, Digeste 22, 1) reconnaissent a 1'Etat debiteur une situation privilegiee (Contre-Memoire Ottoman, p. 33, No. 92) ; qu'en admettant centre un Etat une obligation implicite, non expressement stipulee, en etendant part exemple a un Etat debiteur les regies de la mise en demeure et ses effets en droit prive, on rendrait cet Etat "debiteur dans une mesure plus forte qu'il ne 1'aurait voulu, risquerait de compromettre la vie politique de TEtat, de nuire a ses interets primordiaux, de bouleverser son budget, de Pempecher de se defendre contre une insurrection ou contre 1'etranger." (Contre-Memoire Ottoman, p. 33, No. 91.)
Eventuellement et pour le cas ou une responsabilite devrait lui in- comber, le Gouvernement Imperial Ottoman conclut a ce que cette responsabilite consiste uniquement en interets moratoires et cela seule- ment a partir d'une mise en demeure reconnue reguliere. (Contre- Replique Ottomane, pp. 71 et suivantes, Nos. 410 et suivants.)
II oppose en outre les exceptions de la chose jugee, de la force majeure, du caractere de liberalite des indemnites, et de la renoncia- tion tacite ou expresse de la Russie au benefice de la mise en demeure.
3. Les rapports de droit qui font Tobjet du present litige etant in- tervenus entre Etats Puissances publiques sujets du droit international et ces rapports rentrant dans le domaine du droit public, le droit appli- cable est le droit international public soit droit des gens et les Parties sont avec raison d'accord sur ce point. (Memoire Russe, p. 32; Con- tre-Memoire Ottoman, numeros 47 a 54, p. 18-20; Replique Russe, p. 18; Contre-Replique Ottomane, p. 17, numeros 244 et 245.)
4. La demande du Gouvernement Imperial de Russie est fondee sur le principe general de la responsabilite des Etats, a Tappui duquel il a invoque un grand nombre de sentences arbitrates .
La Sublime-Porte, sans contester ce principe general, pretend echap- per a son application en afnrmant le droit des Etats a une situation ex-
542 ORIGINAL TEXTS
ceptionnelle et privilegiee dans le cas special de la responsabilite en matiere de dettes d'argent.
Elle declare inoperants la plupart des precedents arbitraux in- voques, comme ne s'appliquant pas a cette categoric speciale.
Le Gouvernement Imperial Ottoman fait observer, a 1'appui de sa maniere de voir, qu'en doctrine, on distingue des responsabilites di- verses selon leur origine et selon leur etendue. Ces nuances se rat- tachent surtout a la theorie des responsabilites en Droit romain et dans les legislations inspirees du Droit romain. Les Memoires Ottomans rappellent les distinctions suivantes dont quelques-unes sont classiques : Les responsabilites sont d'abord divisees en deux categories, suivant qu'elles ont pour cause un delit ou quasi-delit (responsabilite delic- tuelle) ou un contrat (responsabilite contractuelle). — Parmi les re- sponsabilites contractuelles, on distingue encore suivant qu'il s'agit d'obligations ayant pour objet une prestation quelconque autre qu'une somme d'argent ou suivant qu'il s'agit de prestations d'un caractere exclusivement pecuniaire, d'une dette d'argent proprement dite. Ces diverses categories de responsabilites ne sont pas appreciees en droit civil d'une maniere absolument identique, les circonstances necessaires a la naissance de la responsabilite ainsi que ces consequences etant variables. — Tandis qu'en matiere de responsabilites delictuelles aucune formalite quelconque n'est necessaire, en matiere contractuelle il faut tou jours une mise en demeure. Tandis qu'en matiere d'obligations ayant pour objet une prestation autre qu'une somme d'argent comme d'ailleurs en matiere delictuelle, la reparation du dommage est complete (lucrum cessans et danmum emergens), cette reparation, en matiere de dettes d'argent, est restreinte f orfaitairement aux interets de la somme due, lesquels ne courront qu'a partir de la mise en demeure. Les dommage s-interets sont appeles compensatoires quand ils sont la com- pensation du dommage resultant d'un delit ou de 1'inexecution d'une obligation. Ils sont appeles dommages-interets moratoires, bien qu'ils representent encore une compensation, lorsqu'ils sont la consequence d'un retard dans 1'execution d'une obligation. — Les auteurs enfin ap- pellent interets moratoires les interets forfaitairements alloues en cas de retard dans le payement de dettes d'argent, les distinguant ainsi d'autres interets ajoutes, parfois, pour fixer le montant total d'une indemnite, a revaluation en argent d'un dommage, ces derniers etant appeles interets compensatoires.
Ces distinctions du droit civil s'expliquent : En matiere de respon- sabilite contractuelle en effet, on est en droit d'exiger d'un co-contrac- tant une diligence dont la victime d'un delit imprevu ne saurait etre tenue. — En matiere de dettes d'argent, la difrkulte d'evaluer les con- sequences de la demeure explique qu'on ait fixe forfaitairement le montant du dommage.
La these du Gouvernement Imperial Ottoman consiste a soutenir qu'en droit international public, la responsabilite speciale consistant au payement d'interets moratoires en cas de retard dans le reglement d'une dette d'argent liquide n'existe pas pour un Etat debiteur. La Sublime-Porte ne conteste pas la responsabilite des Etats s'il s'agit de
THE RUSSIAN INDEMNITY CASE 543
dommages-interets compensatoires, ni des interets pouvant rentrer dans le calcul de ces dommages-interets compensatoires. La responsabilite que la Sublime-Porte decline, c'est celle pouvant resulter, sous forme d'interets de retard ou moratoires au sens restreint, du retard dans l'exe:ution d'une obligation pecuniaire.
II importe de rechercher si ces denominations variees, ces appella- tions creees par les commentateurs, correspondent a des differences in- trinseques dans la nature meme du droit, a des differences dans 1'es- sence juridique de la notion de responsabilite. — Le tribunal est d'avis que tous les dommages-interets sont tou jours la reparation, la com- pensation d'une faute. A ce point de vue, tous les dommages-interets sont compensatoires, peu importe le nom qu'on leur donne. Les in- terets forfaitaires alloues au creancier d'une somme d'argent a partir de la mise en demeure sont la compensation forfaitaire de la faute du debiteur en retard exactement comme les dommages-interets ou les interets alloues en cas de delit, de quasi-delit ou d'inexecution d'une obligation de faire, sont la compensation du prejudice subi par le crean- cier, la representation en argent de la responsabilite du debiteur fautif . — Exagerer les consequences des distinctions faites en droit civil dans la responsabilite se legitimerait d'autant moins qu'il se dessine, dans plusieurs legislations recentes, une tendance a attenuer ou a supprimer les adoucissements apportes par le Droit romain et ses derives a la re- sponsabilite en matiere de dettes d'argent. — II est certain en effet que toutes les fautes, quelle qu'en soit 1'origine, finissent par etre evaluees en argent et transformers en obligation de payer; elles aboutissent toutes, ou peuvent aboutir, en derniera analyse, a une dette d'argent. — II n'est done pas possible au tribunal d'apercevoir des differences essentielles entre les diverses responsabilites. Identiques dans leur origine, la faute, elles sont les memes dans leurs consequences, la reparation en argent.
Le Tribunal est done de 1'avis que le principe general de la respon- sabilite des Etats implique une responsabilite speciale en matiere de retard dans le payement d'une dette d'argent, a moins d'etablir 1'exis- tence d'une coutume internationale contraire.
Le Gouvernement Imperial de Russie et la Sublime-Porte ont ap- porte au debat une serie de sentences arbitrales qui ont admis, affirme et consacre le principe de la responsabilite des Etats. La Sublime- Porte considere comme inoperantes la presque totalite de ces sentences et elimine meme celles dans lesquelles 1'arbitre a expressement alloue 1'interet de sommes d'argent. Le Gouvernement Imperial Ottoman est d'avis qu'il s'agit la d'interets compensatoires et il les ecarte comme sans application dans le litige actuel. Le Tribunal, pour les motifs in- diques plus haut, est au contraire de 1'avis qu'il n'existe pas de raisons pour ne pas s'inspirer de la grande analogic qui existe entre les diverses formes de la responsabilite ; cette analogic apparait comme particuliere- ment etroite entre les interets dits moratoires et les interets dits com- pensatoires; 1'analogie parait complete entre allocation d'interets a partir d'une certaine date a 1'occasion de revaluation de la responsa- bilite en capital, et Tallocation d'interets sur un capital fixe par conven-
544 ORIGINAL TEXTS
tion et demeure impaye par un debiteur en f aute. La seule difference est que, dans un des cas, les interets sont alloues par le juge puisque la dette n'etait pas exigible et que dans 1'autre le montant de la dette etait fixe par convention et que les interets deviennent exigibles auto- matiquement en cas de mise en demeure.
Pour infirmer cette analogic tres etroite, il faudrait que la Sublime- Porte put etablir 1'existence d'une coutume, de precedents d'apres lesquels des interets moratoires au sens restreint du mot auraient ete refuses en tant qu'interets moratoires, 1'existence d'une coutume de- rogeant, en matiere de dette pecuniaire, aux regies generates de la re- sponsabilite. — Le Tribunal est d'avis que cette preuve, non seulement n'a pas ete faite, mais que le Gouvernement Imperial Russe a pu se prevaloir, au contraire, de plusieurs sentences arbitrates dans lesquelles des interets moratoires ont ete, parfois il est vrai avec des nuances et dans une mesure discutables, alloues a des Etats (Mexique-Venezuela, 2 octobre 1903, Memoire Russe, p, 28 et note 5 ; Contre-Memoire Otto- man, p. 38, N°. 107 ; Colombie-Italie, 9 avril 1904, Replique Russe, p. 28 et note 7; Contre-Replique Ottomane, p. 58, N°. 368; Etats-Ums- Choctaws, Replique Russe, p. 29; Contre-Replique Ottomane, p. 59, N°. 369. Etats-Unis-Venesuela, 5 decembre 1885, Replique Russe, p. 28 et note 5). II y a lieu d'ajouter a ces cas la sentence rendue le 2 juillet 1881 par S. M. TEinpereur d'Autriche dans Faffaire de la Mos- quitia, en ce sens que 1'arbitre n'a nullement refuse des interets mora- toires comme tels, mais a simplement prononce que 1'allocation du capital ayant le caractere d'une liberalite, cela excluait, dans la pensee de 1'arbitre, des interets de retard (Replique Russe, p. 28, note 4; Contre-Replique Ottomane, p. 55, N°. 365, note).
II reste a examiner si la Sublime-Porte est fondee a soutenir qu'un Etat n'est pas un debiteur comme un autre, qu'il ne peut etre "debiteur dans une mesure plus forte qu'il ne Taurait voulu," et qu*en lui im- posant des obligations qu'il n'a pas stipulees, par exemple les respon- sabilites d'un debiteur prive, on risquerait de compromettre ses finances et meme son existence politique.
Des 1'instant ou le Tribunal a admis que les diverses responsabilites des Etats ne se distinguent pas les unes des autres par des differences essentielles, que toutes se resolvent ou peuvent finir pas se resoudre dans le payement d'une somme d'argent, et que la coutume interna- tionale et les precedents concordent avec ces principes, il faut en con- clure que la responsabilite des Etats ne saurait etre nice ou admise qu'entierement et non pour partie ; il ne serait des lors pas possible au tribunal de la declarer inapplicable en matiere de dettes d'argent sans etendre cette inapplicabilite a toutes les autres categories de responsa- bilites.
Si un Etat est condamne a des dommages-interets compensatoires d'un delit ou de 1'inexecution d'une obligation, il est, encore plus que dans le cas de retard dans le payement d'une dette d'argent conven- tionnelle, debiteur dans une mesure qu'il n'aurait pas stipulee volon- tairement. — Quant aux consequences de ces responsabilites pour les
THE RUSSIAN INDEMNITY CASE 545
finances de 1'Etat debiteur, elles peuvent etre au moms aussi graves, sinon davantage, s'il s'agit des dommages-interets appeles compensa- toires par la Sublime-Porte, que s'il s'agit des simples interets mora- toires au sens restreint du mot. Pour peu d'ailleurs que la responsa- bilite mette en peril 1'existence de 1'Etat, elle constituerait un cas de force majeure qui pourrait etre invoque en droit international public aussi bien que par un debiteur prive.
Le Tribunal est done d'avis que la Sublime-Porte, qui a accepte explicitement le principe de la responsabilite des Etats, n'est pas fondee a demander une exception a cette responsabilite en matiere de dettes d'argent, en invoquant sa qualite de Puissance publique et les conse- quences politiques et financieres de cette responsabilite.
5. Pour etablir en quoi consiste cette responsabilite speciale incom- bant a 1'Etat debiteur d'une dette conventionnelle liquide et exigible, il convient maintenant de rechercher, en procedant par analogic comme Tont fait les sentences arbitrales invoquees, les principes generaux de droit public et prive en cette matiere, tant au point de vue de 1'etendue de cette responsabilite qu'a celui des exceptions opposables.
Les legislations privees des Etats faisant partie du concert europeen admettent toutes, comme le faisait autrefois le Droit romain, 1'obliga- tion de payer au moins des interets de retard a titre d'indemnite for- faitaire lorsqu'il s'agit de 1'inexecution d'une obligation consistant dans le payement d'une somme d'argent fixee conventionnellement, liquide et exigible, et cela au moins a partir de la mise en demeure du de- biteur.— Quelques legislations vont plus loin et considerent que le de- biteur est deja en demeure des la date de 1'echeance ou encore admet- tent la reparation complete des dommages au lieu des simples interets forfaitaires.
Si la plupart des legislations ont, a Texemple du Droit romain, exige une mise en demeure expresse, c'est que le creancier est en faute de son cote par manque de diligence tant qu'il ne reclame pas le paye- ment d'une somme liquide et exigible.
Le Gouvernement Imperial Russe (Memoire, p. 32) admet lui-meme, en faveur de la necessite d'une mise en demeure, qu'en equite, il peut convenir "de ne pas prendre par surprise un Etat debiteur passible d'interets moratoires, alors qu'aucun avertissement ne 1'a rappele a 1'observation de ses engagements." Les auteurs (p. ex. Heffter, Droit international de V Europe, paragr. 94), font observer que, lors de 'Texecution d'un traite public, il faut proceder avec moderation et avec equite, d'apres la maxime qu'on doit traiter les autres comme on voudrait etre traite soi-meme. II faut, en consequence, accorder des delais convenables, afm que la partie obligee subisse le moins de pre- judice possible. L'oblige peut attendre la mise en demeure du crean- cier avant d'etre responable du retard, s'il ne s'agit pas de prestations dont 1'execution est rattachee d'une maniere expresse a une epoque determinee." Voir aussi Merignhac Traite de I' arbitrage international, Paris, 1895, p. 290.
D'assez nombreuses sentences arbitrales Internationales ont admis,
546 ORIGINAL TEXTS
meme lorsqu'il s'agissait de dommages-interets moratoires, qu'il n'y avait pas lieu de les faire courir toujours des la date du fait dommage- able (Etats-Unis centre Venezuela, Orinoco, sentence de la Haye du 25 octobre 1910 protocoles, p. 59, Etats-Unis centre Chili, 15 mai 1863, sentence de S. M. le Roi des Beiges Leopold I, Lafontaine, Pasicrisie, p. 36, colonne 2 et p. 37, colonne 1, Allemagne contre Venezuela, Ar- rangement du 7 mai 1903, Ralston & Doyle, Venezuelan Arbitrations, Washington, 1904, p. 520 a 523, Etats-Unis contre Venezuela, 5 de- cembre 1885, Moore, Digest of International Arbitrations, p. 3545 et p. 3567, Vol. 4, etc., etc.).
II n'y a done pas lieu, et il serait contraire a requite de presumer une responsabilite de TEtat debiteur plus rigoureuse que celle imposec au debiteur prive dans un grand nombre de legislations europeennes. L'equite exige, comme Tindique la doctrine, et comme le Gouverne- ment Imperial Russe 1'admet lui-meme, qu'il y ait eu avertissement, mise en demeure adressee au debiteur d'une somme ne portant pas d'interets. Les roemes motifs reclament que la mise en demeure men- tionne expressement les interets, et concourent a faire ecarter une responsabilite depassant les simples interets forfaitaires.
II resulte de la correspondance produite que le Gouvernement Im- perial Russe a expressement et en termes absolument categoriques, reclame de la Sublime-Porte le payement du capital et "des interets" par note de son ambassade a Constantinople en date du 31 decembre 1890/12 Janvier 1891. Entre Etats, la voie diplomatique constitue le mode de communication normal et regulier pour leurs relations de droit international public ; cette mise en demeure est done reguliere en la forme.
Le Gouvernement Imperial Ottoman doit done etre tenu pour re- sponsable des interets de retard a partir de la reception de cette mise en demeure.
Le Gouvernement Imperial Ottoman invoque, pour le cas ou une responsabilite lui serait imposee, diverses exceptions dont il rest a examiner la portee:
6. L' exception de la force majewre, invoquee en premiere ligne, est opposable en droit international public aussi bien qu'en droit prive; le droit international doit s'adapter aux necessites politiques. Le Gouvernement Imperial Russe admet expressement (Replique Russe, p. 33 et note 2) que Tobligation pour un Etat d'executer les traites peut flechir "si Texistence meme de TEtat vient a etre en danger, si Tobservation du devoir international est ... self destructive."
II est incontestable que la Sublime-Porte prouve, a Tappui de Tex- ception de la force majeure (Contre-Memoire Ottoman, p. 43, Nos. 119 a 128, Contre-Replique Ottomane, p. 64, Nos. 382 a 398 et p. 87) que la Turquie s'est trouvee de 1881 a 1902 aux prises avec des difficultes financieres de la plus extreme gravite, cumulees avec des evenements interieurs et exterieurs (insurrections, guerres) qui Font obligee a donner des affectations speciales a un grand nombre de ses revenus, a subir un controle etranger d'une partie de ses finances, a
THE RUSSIAN INDEMNITY CASE 547
accorder meme un moratoire a la Banque Ottomane, et, en general, a ne pouvoir faire face a ses engagements qu'avec des retards ou des lacunes et cela au prix de grands sacrifices. Mais il est avere, d'autre part, que, pendant cette meme periode et notamment a la suite de la creation de la Banque Ottomane, la Turquie a pu contracter des em- prunts a des taux favorables, en convertir d'autres, et finalement amor- tir une partie importante, evaluee a 350 millions de francs, de sa dette publique (Replique Russe, p. 37). II serait manifestement exagere d'admettre que le payement (ou la conclusion d'un emprunt pour le payement) de la somme relativement minime d'environ six millions de francs du aux indemnitaires russes aurait mis en peril 1'existence de FEmpire Ottoman ou gravement compromis sa situation interieure ou exterieure. L 'exception de la force majeure ne saurait done etre accueillie.
7. La Sublime-Porte soutient ensuite "que la reconnaissance d'une creance de capital au profit des indemnitaires russes constituait une liberalite convenue dans leur interet entre les deux Gouvernements" (Contre-Replique, No. 153, p. 19; No. 331, p. 44; No. 365, p. 55, et conclusions, p. 87) — Elle fait observer que le Code civil allemand, paragraphe 522, le Droit commun germanique, la jurisprudence autrichienne et le Droit romain invoque a titre suppletoire (Loi 16 praemium, Digeste 22, 1) interdisent de f rapper d'interets moratoires la donation. — Elle invoque surtout la sentence arbitrale rendue le 2 juillet 1881 par S. M. 1'Empereur d'Autriche dans Taffaire de la Mos- quitia entre la Grande-Bretagne et le Nicaragua.
Dans cette affaire, la Grande-Bretagne avait renonce, par un traite de 1860, au protector at sur la Mosquitia et a la ville de Grey Town (San Juan del Norte) et reconnu sur la Mosquitia la souverainete du Nicaragua en stipulant que cette Republique payerait pendant dix ans au chef des Mosquitos, pour lui faciliter I'etablissement du self-govern- ment dans ses territoires, une rente de 5,000 dollars qui ne tarda pas a demeurer impayee. Le chef des Mosquitos beneficiait done, dans la pensee de Parbitre, d'une veritable liberalite, reclamee en sa faveur du Nicaragua par la Grande-Bretagne, qui, elle, avait fait des sacrifices politiques en renonqant a son protectorat et au port de Grey Town. — Dans Topinion du Tribunal, les indemnitaires russes, eux, ont subi des dommages, ont ete victimes de faits de guerre; la Turquie s'est en- gagee a rembourser le montant de ces dommages a toutes les victimes russes qui auraient fait evaluer leur prejudice par la commission insti- tuee aupres de Tambassade de Russie a Constantinople. Les decisions de cette commission n'ont pas ete contestees et le Tribunal arbitral n'a pas a les reviser ni a apprecier si elles ont ou non ete trop genereuses. Si Tindemnisation par la Turquie des Russes victimes des operations de guerre n'etait pas obligatoire en droit des gens commun, elle n'a rien de contraire a celui-ce et peut etre considered comme la transfor- mation en obligation juridique d'un devoir moral par un traite de paix dans des conditions analogues a une indemnite de guerre proprement
e. — Dans toute la correspondance diplomatique echangee depuis
548 ORIGINAL TEXTS
t rente ans cur cette affaire, les Russes victimes des operations de guerre ont tou jours etc considered par les deux parties signataires des accords de 1878/1879 comme des indemnitaires et non comme des donataires. Enfin, la Turquie a rec.u la contre-partie de sa pretendue liberalite dans le fait de la cessation des hostilites (Replique Russe, p. 50, paragr. 2). // n'est done pas possible d'admettre I' existence d'une liberalite et encoie moins une donation, et il devient, par suite, superflu de re- chercher si, en droit international public, les donateurs doivent benefi- cier de I'exemption d'interets moratoires etablie a leur profit par cer- taines legislations privees.
8. La Sublime-Porte invoque I 'exception de la chose jugee, en s'ap- puyant sur le fait que trois indemnitaires ont demande a la commission institute aupres de 1'ambassade de Russie a Constantinople des interets jusqu'a parfait payement, que la commission a ecarte leur requete et que cette solution negative serait encore plus certainement intervenue a Tegard des autres indemnitaires qui n'ont pas reclame de semblables interets. (Contre-Replique Ottomane, p. 86).
Cette exception ne saurait etre accueillie parce que, meme en admet- tant que la commission de Constantinople puisse etre considered comme un tribunal, la question actuellement pendante est celle de savoir si des dommages-interets sont dus, a posteriori a raison des dates auxquelles ont etc payees les indemnites evaluees en 1879/81 par la Commission ; or celle-ci n'a pas juge et n'a pu juger cette question.
9. La Sublime-Porte invoque, comme derniere exception, le fait "qu'il a etc entendu, tacitement et meme expressement, pendant tout le cours des onze ou douze dernieres annees de correspondances diplo- matiques, que la Russie ne reclamait pas d'interets ni de dommages- interets d'aucune sorte qui auraient etc a la charge de 1'Empire Otto- man" et "que le Gouvernement Imperial de Russie, une fois le capital integralement mis a sa disposition, ne pouvait pas valablement revenir d'une fagon unilaterale sur Tentente convenue de sa part" (Contre- Replique Ottomane, pp. 89-91).
Le Gouvernement Imperial Ottoman fait observer avec raison que si la Russie a fait parvenir a Constantinople, par la voie diplomatique, le 31 decembre 1890/12 Janvier 1891, une mise en demeure reguliere dVoir a payer le capital et les interets, il resulte, d'autre part, de la correapondance subsequente, qu'a Toccasion du payement des acomptes, aucune reserve d'interets n'a figure dans les regus delivres par 1'ambas- sade, et que celle-ci n'a jamais impute les sommes regues sur les interets. II en resulte aussi que les Parties ont non seulement ebauche des com- binaisons pour arriver au payement, mais se sont abstenues de faire mention des interets pendant dix ans environ. II en resulte surtout que les deux Gouvernements ont interprete de f agon identique le terme de reliquat de 1'indemnite; que ce terme, employe pour la premiere fois par le Ministere Ottoman des Affaires Etrangeres dans une com- munication du 27 mars 1893, revient frequemment dans la suite; que les deux Gouvernements ont vise constamment par le mot reliquat les fractions du capital restant du a la date des notes echangees, ce
THE RUSSIAN INDEMNITY CASE 549
qui laisse de cote les interets moratoires; que I'ambassadeur de Russie a Constantinople a ecrit le 23 mai/4 juin 1894: "Je suis oblige d'in- sister pour que la totalite du reliquat du aux sujets russes, qui montc a 01,000 livres turques, soit, sans plus de retard, verse a 1'ambassade, afin de faire droit aux justes plaintes et reclamations des interesses et mettre ainsi reellement, selon 1'expression de Votre Ex- cellence, fin aux incidents auxquels elle avait donne lieu"; que cette somme de 91,000 livres turques etait exactement celle qui demeurait alors due sur le capital et qu'ainsi les interets moratoires ont ete laisses de cote; — que le 3 octobre de la meme annee 1894, la Turquie, sur le point de payer un acompte de 50,000 livres, a annonce a 1'ambassade, sans rencontrer d 'objections, que la Banque Ottomane "garantira le pavement du reliquat de 41,000 livres turques"; — que le 13/25 Janvier 1896, 1'ambassade a repris le meme terme de reliquat de I'indemnite tout en protestant centre 1'affectation par la Turquie a la Banque Otto- mane, de delegations sur des revenus deja engages au Gouvernement Imperial Russe pour le payement de I'indemnite de guerre; — que, le 11 fevrier de cette meme annee 1896, a 1'occasion de la discussion des ressources a fournir a la Banque Ottomane, la Sublime-Porte a men- tionne, dans une note adressee a 1'ambassade, "les 43,978 livres turques representant le reliquat de I'indemnite"; — que, quelques jours plus tard, le 10/22 fevrier, 1'ambassade a repondu en se servant des memes mots "solde" ou "reliquat de I'lndemnite" et, que le 28 mai, le Ministere Ottoman des Affaires Etrangeres a mentionne derechef, "la somme de 43,978 livres turques representant ledit reli- quat" ; — qu'il en a ete de meme dans une note de 1'ambassade datee du 25 avril/8 mai 1900, bien qu'il se fut ecoule pres de quatre ans entre ces communications et celles de 1896 et qu'un rappel de la question des interets s'imposat en quelque sorte apres un aussi long delai ; que cette meme expression "reliquat de I'indemnite" figure dans une note de la Sublime-Porte du 5 juillet 1900; — qu'enfin, le 3/16 mars 1901, TAmbassade de Russie, apres avoir constate que la Banque Ottomane n'a pas fait de nouveaux versements "pour le payement des 43,978 livres turques, montant du reliquat de rindemnite due aux sujets russes," a demande Tenvoi a qui de droit d'ordres "categoriques pour le payement sans plus de retard des sommes susmentionnees" ; — que ce reliquat ayant, a un petit solde pres, ete tenu par la Banque Ottomane a la disposition de 1'ambassade, c'est seulement au bout de plusieurs mois, le 23 juin/6 juillet, que cette derniere a transmis a la Sublime- Porte une demande "des interesses" concluant au payement d'une vingtaine de millions de francs pour interets de retard, en exprimant 1'espoir que la Sublime-Porte "n'hesitera pas a reconnaitre, en principe, le bien fonde de la reclamation," sauf "a deferer Texamen des details a une commission" mixte russo-turque ; — qu'en resume, depuis onze ans et davantage, et jusqu'a une date posterieure au payement du reliquat du capital, il n'avait non seulement plus ete question d'interets entre les deux Gouvernements mais ete a maintes reprises fait men- tion seulement du reliquat du capital.
550 ORIGINAL TEXTS
Des 1'instant ou le Tribunal a reconnu que, d'apres les principes generaux et la coutume en droit international public, il y avait simili- tude des situations entre un Etat et un particulier debiteurs d'une somme conventionnelle liquide et exigible, il est equitable et juridique d'appliquer aussi par analogic les regies de droit prive commun aux cas ou la demeure doit etre considered comme purgee et le benefice de celle-ci supprimee. — En droit prive, les effets de la demeure sont sup- primes lorsque le creancier, apres avoir constitue le debiteur en de- meure, accorde un ou plusieurs delais pour satisfaire a Pobligation principale sans reserver les droits acquis par la demeure (Toullier- Duvergier, Droit frangais, tome III, p. 159, N°. 256), ou encore lorsque "le creancier ne donne pas suite a la sommation qu'il avait faite au debiteur," et "ces regies s'appliquent aux dommages interets et aussi aux interets dus pour Pinexecution de Pobligation * * * ou pour retard dans Pexecution" (Duranton, Droit fran^ais, X, p. 470, Aubry et Rau, Droit Civil 1871, IV, p. 99, Berney, De la demeure, etc., Lausanne, 1886, p. 62; Windscheid, Lehrbuch des Pandektenrechts, 1879, p. 99, Demolombe, X, p. 49; Larombiere I, art. 1139, N°. 22, etc.).
Entre le Gouvernement Imperial Russe et la Sublime-Porte, il y a done eu renonciation au interets de la part de la Russie, puisque son ambassade a successivement accepte sans discussion ni reserve et re- produit a maintes reprises dans sa propre correspondance diploma- tique les chiffres du reliquat de Pindemnite comme indentiques aux chiffres du reliquat en capital. — En d'autres termes, la correspondance des dernieres annees etablit que les deux Parties ont interprete, en fait, les actes de 1879 comme im pi i quant Pidentite entre le payement du solde du capital et le payement du solde auquel avaient droit les indem- nitaires, ce qui impliquait Tabandon des interets ou dommages-interets moratoires.
Le Gouvernement Imperial Russe ne peut, une fois le capital de Pin- demnite integralement verse ou mis a sa disposition, revenir valable- ment d'une faqon unilaterale sur une interpretation acceptee et prati- quee en son nom par son ambassade.
Ill EN CONCLUSION
Le Tribunal arbitral, se basant sur les observations de droit et de fait qui precedent, est d'avis
qu'en principe, le Gouvernement Imperial Ottoman etait tenu, vis-a-vis du Gouvernement Imperial de Russie, a des indemnites mora- toires a partir du 31 decembre 1890/12 Janvier 1891, date de la recep- tion d'une mise en demeure explicite et reguliere,
mais que, de fait, le benefice de cette mise en demeure ayant cesse pour le Gouvernement Imperial de Russie par suite de la renonciation subsequente de son ambassade a Constantinople, le Gouvernement Im- perial Ottoman n'est pas tenu ajourd'hui de lui payer des dommages-
THE RUSSIAN INDEMNITY CASE 551
interets a raison des dates auxquelles a etc effectue le payement des indemnites,
et, en consequence,
ARRETE
il est repondu negativement a la question posee au chiffre 1 de Tar- ticle 3 du Compromis et ainsi congue: "Oui ou non, le Gouvernement Imperial Ottoman est-il tenu de payer aux indemnitaires russes des dommages-interets a raison des dates auxquelles ledit Gouvernement a procede au payement des indemnites fixees en execution de Particle 5 du traite du 27 janvier/8 fevrier 1879, ainsi que du Protocole de meme date"?
Fait a La Haye, dans I'hotel de la Cour Permanente d' Arbitrage, le 11 novembre 1912.
Le President: LARDY
Le Secretaire general: MICHIELS VAN VERDUYNEN Le Secretaire: ROELL
Agreement for Arbitration, July 22/ August 4,
Le Gouvernement Imperial RUFSC et le Gouvernement Imperial Otto- man, cosignataires de la Convention de La Haye du 18 octobre 1907 pour le reglement pacifique des conflits internationaux :
Considerant les dispositions de TArticle 5 du Traite signe a Con- stantinople entre la Russie et la Turquie, le 27 janvier/8 fevrier 1879, ainsi conqu:
"Les reclamations des sujets et institutions russes en Turquie a titre d'indemnite pour les dommages subis pendant la guerre seront payees a mesure qu'elles seront examinees par TAmbassade de Russie a Constantinople et transmises a la Sublime Porte"
"La totalite de ces reclamations ne pourra en aucun cas depasser le chiffre de 26,750,000 francs"
"Le terme d'une annee apres Techange des ratifications est fixe comme date a partir de laquelle les reclamations pourront etre pre- sentees a la Sublime Porte, et celui de deux ans comme date aprcs laquelle les reclamations ne seront plus admises";
Considerant Texplication additionelle inseree au Protocole de meme date portant:
"Quant au terme d'une annee fixe par cet Article comme date a. partir de laquelle les reclamations pourront etre presentees a la Sublime Porte, il est entendu qu'une exception y sera faite en faveur de la reclamation de THopital Russe s'elevant a la somme de 11,200 livres sterlings";
Considerant qu'un desaccord s'est eleve entre le Gouvernement Im- perial Russe et le Gouvernement Imperial Ottoman relativement aux consequences de droit resultant des dates auxquelles de Gouvernement
Official report, p 5.
552 ORIGINAL TEXTS
Imperial Ottoman a eff ectue, sur les montants des indemnites reguliere- ment presentees en execution dudit Article 5, les payements ci-apres, savoir :
livr. turq. pi. par.
En 1884 50,000 — —
En 1889 50,000 — —
En 1893 75,000 — —
En 1894 50,000 — —
En 1902 42,438 67 JJ
Considerant que le Gouvernement Imperial Russe soutient que le Gouvernement Imperial Ottoman est responsable de dommages-interets a Tegard des indemnitaires russes pour le retard apporte au reglement de sa dette ;
Considerant que le Gouvernement Imperial Ottoman conteste, tant en fait qu'en droit, le bien-fonde de la prevention du Gouvernement Imperial Russe;
Considerant que le litige n'a pu etre regie par la voie diplomatique ;
Et ayant resolu, conformement aux stipulations de ladite Conven- tion de La Haye, de terminer ce differend en soumettant la question a un Arbitrage ;
Ont, a cet effet, autorise leurs Representants ci-dessous designes, savoir :
pour la Russie,
Son Excellence Monsieur Tcharykow, Ambassadeur de Sa Majeste 1'Empereur de Russie a Constantinople ;
pour la Turquie,
Son Excellence Rifaat Pacha, Ministre des Affaires etrangeres,
A conclure le Compromis suivant :
ARTICLE PREMIER
Les Puissances en litige decident que le Tribunal Arbitral auquel la question sera soumise en dernier ressort sera compose de cinq mem- bres, lesquels seront designes de la maniere suivante :
Chaque Partie, aussitot que possible, et dans un delai qui n'excedera pas deux mois a partir de la date de ce Compromis, devra nommer deux Arbitres, et les quatre Arbitres ainsi designes choisiront ensemble un Sur-Arbitre. Dans le cas ou les quatre Arbitres n'aurant pas, dans le delai de deux mois apres leur designation, choisi a 1'unanimite ou a la majorite un Sur-Arbitre, le choix du Sur-Arbitre est confie a une Puissance tierce designee de commun accord par les Parties. Si, dans un delai de deux autres mois, Taccord ne s'etablit pas a ce sujet, chaque Partie designe une Puissance differente et le choix du Sur- Arbitre est fait de concert par les Puissances ainsi designees.
Si, dans un delai de deux autres mois, ces deux Puissances n'ont pu tomber d'accord, chacune d'elles presente deux candidats pris sur la liste des membres de la Cour Permanente en dehors des membres
THE RUSSIAN INDEMNITY CASE 553
de ladite Cour designes par ces deux Puissances ou par les Parties, et n'etant les nationaux ni des uns ni des autres. Ces candidats ne pour- ront, en plus, appartenir a la nationalite des Arbitres nommes par les Parties dans le present Arbitrage. Le sort determine lequel des can- didats ainsi presentes sera le Sur-Arbitre.
Le tirage au sort sera effectue par les soins du Bureau International de la Cour Permanente de La Haye.
ART. 2
Les Puissances en litige se feront representer aupres du Tribunal Arbitral par des agents, conseils ou avocats, en conformite desprevi- sions de TArticle 62 de la Convention de La Haye de 1907 pour le reglement pacifique des conflits internationaux.
Ces agents, conseils ou avocats seront designes par les Parties a temps pour que le fonctionnement de 1'Arbitrage ne subisse aucun retard.
ART. 3
Les questions en litige et sur lesquelles les Parties demandent au Tribunal Arbitral de prononcer une decisions definitive sont les suivantes :
I. Oui ou non, le Gouvernement Imperial Ottoman est-il tenu de payer aux indemnitaires russes des dommages-interets a raison des dates auxquelles ledit Gouvernement a precede au payement des in- demnites fixees en execution de Tarticle 5 du Traite du 27 Janvier/ 8 fevrier 1879, ainsi que du Protocole de meme date?
II. En cas de decision affirmative sur la premiere question, quel serait le montant de ces dommages-interets?
ART. 4
Le Tribunal Arbitral, une fois constitue, se reunira a La Haye a une date qui sera fixee par les Arbitres, et dans le delai d'un mois a partir de la nomination du Sur-Arbitre. Apres le reglement — en con- formite avec le texte et 1'esprit de la Convention de La Haye de 1907 — de toutes les questions de procedure qui ppurraient surgir et qui ne seraient pas prevues par le present Compromis, ledit Tribunal ajournera sa prochaine seance a la date qu'il fixera.
Toutefois, il reste convenue que le Tribunal ne pourra ouvrir les debats sur les questions en litige ni avant les deux mois, ni plus tard que les trois mois qui suivront la remise du Contre-Memoire ou de la Contre-Replique prevus par Tarticle 6 et eventuellement des conclu- sions stipulees a 1'article 8.
ART. 5
La procedure arbitrale comprendra deux phases distinctes : Tinstruc- tion ecrite et les debats qui consisteront dans le developpement oral des moyens des Parties devant le Tribunal.
La seule langue dont fera usage le Tribunal et dont Temploi sera autorise devant lui sera la langue f ranqaise.
554 ORIGINAL TEXTS
ART. 6
Dans le delai de huit mois au plus apres la date du present Com- promis, le Gouvernement Imperial Russe devra remettre a chacun des membres du Tribunal Arbitral, en un exemplaire, et au Gouvernement Imperial Ottoman, en dix exemplaires, les copies completes, ecrites ou imprimees, de son Memoire contenant toutes pieces a 1'appui de sa demande et pouvant se referer aux deux questions visees par Particle 3.
Dans un delai de huit mois au plus tard apres cette remise, le Gouvernement Imperial Ottoman devra remettre a chacun des membres du Tribunal, ainsi qu'au Gouvernement Imperial Russe, en autant d'exemplaires que ci-dessus, les copies completes, manuscrites ou im- primees, de son Contre-Memoire, avec toutes pieces a 1'appui, mais pouvant se borner a la question N°. I de 1'article 3.
Dans de delai d'un mois apres cette remise, le Gouvernement Im- perial Russe notifiera au President du Tribunal Arbitral s'il a Pintention de presenter une Replique. Dans ce cas, il aura un delai de trois mois au plus, a compter de cette notification, pour communiquer ladite Replique dans les memes conditions que le Memoire. Le Gouverne- ment Imperial Ottoman aura alors un delai de quatre mois, a compter de cette communication, pour presenter sa Contre-Replique, dans les memes* conditions que le Contre-Memoire.
Les delais fixes par le present article pourront etre prolonges de commun accord par les Parties, ou par le Tribunal, quand il le juge necessaire, pour arriver a une decision juste.
Mais le Tribunal ne prendra pas en consideration les Memoires, Contre-Memoires ou autres communications qui lui seront presentees par les Parties apres Pexpiration du dernier delai par lui fixe.
ART. 7
Si, dans les memoires ou autres pieces echanges, Tune ou Pautre Partie s'est referee ou a fait allusion a un document ou papier en sa possession exclusive, dont elle n'aura pas joint la copie, elle sera tenue, si Pautre Partie le demande, de lui en donner la copie, au plus tard dans les trente jours.
ART. 8
Dans le cas ou le Tribunal Arbitral aurait afnrmativement statue sur la question posee au N°. I de Particle 3, il devra, avant d'aborder Pexamen du N°. II du meme article, donner aux Parties de nouveaux delais no pouvant etre inf erieurs a trois mois chacun, pour presenter et echanger leurs conclusions et arguments a Pappui.
ART. 9
Les decisions du Tribunal sur la premiere, et eventuellement sur la seconde question en litige, seront prononcees, autant que possible, dans le delai d'un mois apres la cloture par le President des debats relatifs a chacune de ces questions.
THE RUSSIAN INDEMNITY CASE 555
ART. 10
Le jugement du Tribunal Arbitral sera dennitif et devra etre execute strictement et sans aucun retard.
ART. 11
Chaque Partie supporte ses propres f rais et une parte egale des f rais du Tribunal.
ART. 12
En tout ce qui n'est pas prevu par le present Compromis, les stipula- tions de la Convention de La Haye de 1907 pour le reglement pacifique des Conflits internationaux seront appliquees a cet Arbitrage, a 1'ex- ception, toutefois, des articles dont Tacceptation a etc reservee par le Gouvernement Imperial Ottoman.
Fait a Constantinople, le 22 juillet/4 aout 1910.
(Signe) : N. TCHARYKOW (Signe) : RIFAAT
THE CARTHAGE CASE
Award of the Tribunal, May 6,
Considerant que, par un Accord du 26 Janvier 1912 et par un Com- promis du 6 mars suivant, le Gouvernement de la Republique Fran- caise et le Gouvernement Royal Italien sont convenus de soumettre a un Tribunal Arbitral compose de cinq Membres la solution des ques- tions suivantes:
1°. Les autorites navales italiennes etaient-elles en droit de proceder comme elles ont fait a la capture et a la saisie momentanee du vapeur postal f rangais "Carthage" ?
2°. Quelles consequences pecuniaires ou autres doivent resulter de la solution donnee a la question precedente?
Considerant qu'en execution de ce Compromis les deux Gouverne- ment ont choisi, d'un commun accord, pour constituer le Tribunal Ar- bitral les Membres suivants de la Cour Permanente d' Arbitrage :
Son Excellence Monsieur Guido Fusinato, Docteur en droit, Mi- nistre d'Etat, ancien Ministre de Tlnstruction publique, Professeur honoraire de droit international a FUniversite de Turin, Depute, Con- seiller d'Etat ;
Monsieur Knut Hjalmar Leonard de Hammarskjold, Docteur en droit, ancien Ministre de la Justice, ancien Ministre des Cultes et de 1'Instruction publique, ancien Envoye extraordinaire et Ministre pleni- potentiaire a Copenhague, ancien President de la Cour d'appel de Jonkoping, ancien Professeur a la Faculte de droit d'Upsal, Gouverneur de la province d'Upsal ;
Monsieur Kriege, Docteur en droit, Conseiller actuel intime de Le- gation et Directeur au Departement des Affaires Etrangeres, Pleni- potentiaire au Conseil Federal Allemand;
Monsieur Louis Renault, Ministre plenipotentiaire, Membre de ITn- stitut, Professeur a la Faculte de droit de TUniversite de Paris et a TEcole libre des sciences politiques, Jurisconsulte du Ministere des Affaires Etrangeres ;
Son Excellence le Baron Michel de Taube, Docteur en droit, Adjoint du Ministre de Tlnstruction publique de Russie, Conseiller d'Etat actuel ;
que les deux Gouvernements ont, en meme temps, designe Monsieur de Hammarskjold pour remplir les fonctions de President.
Considerant que, en execution du Compromis du 6 mars 1912, les Memoires et Contre-Memoires ont etc dument echanges entre les Parties et communiques aux Arbitres ;
Considerant que le Tribunal, constitue comme il est dit ci-dessus, s'est reuni a La Haye le 31 mars 1913 ;
1 Official report, p. 112.
THE CAKTHAGE CASE 557
que les deux Gouvernements ont respectivement designe comme Agents et Conseils,
le Gouvernement de la Republique Frangaise :
Monsieur Henri Fromageot, Avocat a la Cour d'appel de Paris, Jurisconsulte suppleant du Ministere des Affaires Etrangeres, Con- seiller du Departement de la Marine en droit international, Agent;
Monsieur Andre Hesse, Avocat a la Cour d'appel de Paris, Membre de la Chambre des Deputes, Conseil ;
Le Gouvernement Royal Italien :
Monsieur Arturo Ricci-Busatti, Envoye extraordinaire et Ministre plenipotentiaire, Chef du Bureau du Contentieux et de la Legislation au Ministere Royal des Affaires Etrangeres, Agent;
Monsieur Dionisio Anzilotti, Professeur de droit international a TUniversite de Rome, Conseil.
Considerant que les Agents des Parties ont presente au Tribunal les conclusions suivantes, savoir,
FAgent du Gouvernement de la Republique Frangaise:
PLAISE AU TRIBUNAL,
Sur la premiere question posee par le Compromis,
Dire que les autorites navales italiennes n'etaient pas en droit de proceder comme elles ont fait a la capture et a la saisie momentanee du vapeur postal f rangais "Carthage" ;
En consequence et sur la seconde question,
Dire que le Gouvernement Royal Italien sera tenu de verser au Gouvernement de la Republique Frangaise a titre de dommages- interets :
1°. La somme de un franc pour atteinte portee au pavilion f rangais ;
2°. La somme de cent mille francs pour reparation du prejudice moral et politique resultant de 1'inobservation du droit commun inter- national et des conventions reciproquement obligatoires pour 1'Italie comme pour la France ;
3°. La somme de cinq cent soixante-seize mille sept cent trente-huit francs vingt-trois centimes, montant total des pertes et dommages reclames par les particuliers interesses au navire et a son expedition ;
Dire que la somme susdite de cent mille francs sera versee au Gouvernement de la Republique pour le benefice en etre attribue a telle oeuvre ou institution d'interet international qu'il plaira au Tribunal d'indiquer ;
Subsidiairement et dans le cas ou le Tribunal ne se croirait pas, des a present, suffisamment eclaire sur le bien f onde des reclamations par- ticulieres,
Dire que, par tel ou tels de ses membres qu'il lui plaira de cotn- mettre a cet effet, il sera, en presence des Agents et Conseils des deux Gouvernements, procede, en la Chambre de ses deliberations, a rexamen de chacune desdites, reclamations particulieres ;
Dans tous les cas, et par application de Tarticle 9 du Compromis,
Dire que, a rexpiration d'un delai de trois mois a compter du jour
558 ORIGINAL TEXTS
de la sentence, les sommes mises a la charge du Gouvernement Royal Italien et non encore versees seront productives d'interets a raisen de quatre pour cent par an.
Et 1' Agent du Gouvernement Royal Italien :
PLAISE AU TRIBUNAL,
Sur la premiere question posee par le Compromis,
Dire et juger que les autorites navales italiennes etaient pleinement en droit de proceder comme elles ont fait a la capture et a la saisie momentanee du vapeur postal f ranc.ais "Carthage" ;
En consequence et sur la seconde question,
Dire et juger qu'aucune consequence pecuniaire ou autre ne saurait resulter, a la charge du Gouvernement Royal Italien, de la capture et de la saisie momentanee du vapeur postal f rancais "Carthage" ;
Dire que le Gouvernement Franqais sera tenu de verser au Gouverne- ment Italien la somme de deux mille soixante-douze francs vingt-cinq centimes, montant des frais occasionnes par la saisie du "Carthage";
Dire que, a Texpiration d'un delai de trois mois a compter du jour de la sentence, la somme mise a la charge du Gouvernement de la Republique Francaise sera, si elle n'a pas encore etc versee, pro- ductive d'interets a raison de quatre pour cent par an.
Considerant que, apres que le Tribunal eut entendu les exposes oraux des Agents des Parties et les explications qu'ils lui ont fournies sur sa demande, les debats ont ete dument declares clos.
EN FAIT:
Considerant que le vapeur postal franqais "Carthage," de la Com- pagnie Generate Transatlantique, au cours d'un voyage regulier entre Marseille et Tunis, fut arrete, le 16 Janvier 1912, a 6 heures 30 du matin, en pleine mer, a 1 7 milles des cotes de Sardaigne, par le contre- torpilleur de la Marine Royale Italienne "Agordat" ;
que le commandant de 1'" Agordat," ayant constate le presence a bord du "Carthage" d'un aeroplane appartenant au sieur Duval, aviateur franqais, et expedie a Tunis a Vadresse de celui-ci, a declare au capitaine du "Carthage" que 1'aeroplane en question etait considere par le Gouvernement Italien comme contrebande de guerre ;
que, le transbordement de Taeroplane n'ayant pu etre opere, le capitaine du "Carthage" a regu Tordre de suivre 1* "Agordat" a Cagliari, ou il a ete retenu jusqu'au 20 Janvier ;
EN DROIT:
Considerant que, d'apres les principes universellement admis, un batiment de guerre belligerant a, en these generale et sans conditions particulieres, le droit d'arreter en pleine mer un navire de commerce neutre et de proceder a la visite pour s'assurer s'il observe les regies sur la neutralite, specialement au point de vue de la contrebande ;
Considerant, d'autre part, que la legitimite de tout acte depassant les limites de la visite depend de Texistence, soit d'un trafic de contre- bande, soit de motifs sufnsants pour y croire,
THE CARTHAGE CASE 559
que, a cet egard, il faut s'en tenir aux motifs d'ordre juridique;
Considerant que, dans 1'espece, le "Carthage" n'a pas etc seulement arrete et visite par l'"Agordat," mais aussi amene a Cagliari, sequestre et retenu un certain temps, apres lequel il a etc relaxe par voie adminis- trative ;
Considerant que, le but poursuivi par les mesures prises contre le paquebot-poste francais etait d'empecher le transport de 1'aeroplane appartenant au sieur Duval, et embarque sur le "Carthage" a 1'adresse de ce meme Duval, a Tunis ;
que cet aeroplane etait considere par les autorites italiennes comme constituant de la contrebande de guerre, tant par sa nature que par sa destination qui, en realite, aurait ete pour les forces ottomanes en Tripolitaine ;
Considerant, pour ce qui concerne la destination hostile de 1'aero- plane, element essentiel de la saisissabilite,
que les renseignements possedes par les autorites italiennes etaient d'une nature trop generate et avaient trop peu de connexite avec 1'aeroplane dont il s'agit, pour constituer des motifs juridiques suffi- sants de croire a une destination hostile quelconque et, par consequent, pour justifier la capture du navire qui transportait 1'aeroplane ;
que la depeche de Marseille, relatant certains propos tenus par le mecanicien du sieur Duval, n'est parvenue aux autorites italiennes qu'apres que le "Carthage" avait ete arrete et conduit a Cagliari et nfa pu, par suite, motiver ces mesures ; que, d'ailleurs, elle n'aurait pu, dans tous les cas, fournir des motifs suffisants dans le sens de ce qui a ete dit precedemment ;
Considerant que, ce resultat acquis, il n'importe pas au Tribunal de rechercher si 1'aeroplane devait ou non par sa nature etre compris dans les articles de la contrebande, soit relative, soit absolue, pas plus que d'examiner si la theorie du voyage continu serait ou non applicable dans 1'espece;
Considerant que, le Tribunal trouve egalement superflu d'examiner s'il y a eu, lors des mesures prises contre le "Carthage," des irregularites de forme et si, en cas d'affirmative, ces irregularites etaient de nature a vicier des mesures autrement legitimes ;
Considerant que, les autorites italiennes n'ont demande la remise du port postal que pour le faire parvenir a destination le plus tot possible,
que cette demande, qui parait avoir ete d'abord mal comprise par le capitaine du "Carthage," etait conforme a la Convention du 18 octobre 1907 relative a certaines restrictions a I'exercice du droit de capture, qui, d'ailleurs, n'etait pas ratifiee par les belligerants.
Sur la demande tendant a faire condamner le Gouvernement Royal I tali en a verser au Gouvernement de la Republique Francaise a titre de dommages-interets :
1°. la somme de un franc pour atteinte portee au pavilion francais ;
2°. la somme de cent mille francs pour reparation du prejudice moral et politique resultant de 1'inobservation du droit commun international et des conventions reciproquement obligatoires pour 1'Italie comme pour la France,
560 ORIGINAL TEXTS
Considerant que, pour le cas ou une Puissance aurait manque a remplir ses obligations, soit generates, soit speciales, vis-a-vis d'une autre Puissance, la constatation de ce fait, surtout dans une sentence arbitrate, constitue deja une sanction serieuse;
que cette sanction est renforcee, le cas echeant, par le paiement de dommages-interets pour les pertes materielles ;
que, en these generate et abstraction f aite de situations particulieres, ces sanctions paraissent suffisantes ;
que, egalement en these generate, Introduction d'une autre sanction pecuniaire parait etre superflue et depasser le but de la juridiction inter- nationale ;
Considerant que, par application de ce qui vient d'etre dit, les cir- constances de la cause presente ne sauraient motiver une telle sanction supplementaire ; que, sans autre examen, il n'y a done pas lieu de donner suite a la demande susmentionnee.
Sur la demande de 1' Agent frangais tendant a faire condamner le Gouvernement Italien a payer la somme de cinq cent soixante-seize mille sept cent trente-huit francs vingt-trois centimes, montant total des pertes et dommages reclames par les particuliers interesses au navire et a son expedition,
Considerant que, la demande d'une indemnite est, en principe, justifiee;
Considerant que, le Tribunal, apres avoir entendu les explications concordantes de deux de ses membres charges par lui de proceder a une enquete sur lesdites reclamations, a evalue a soixante-quinze mille francs le montant de Tindemnite due a la Compagnie generate trans- atlantique, a vingt-cinq mille francs le montant de 1'indemnite due a 1'aviateur Duval et consorts, enfin a soixante mille francs 1'indemnite due a 1'ensemble des passagers et chargeurs, soit a cent soixante mille francs la somme totale a payer par le Gouvernement Italien au Gou- vernement Frangais.
PAR CES MOTIFS,
Le Tribunal Arbitral declare et prononce ce qui suit :
Les autorites navales italiennes n'etaient pas en droit de proceder comme elles ont fait a la capture et a la saisie momentanee du vapeur postal frangais "Carthage."
Le Gouvernement Royal Italien sera tenu, dans les trois mois de la presente sentence, de verser au Gouvernement de la Republique Fran- gaise la somme de cent soixante mille francs, montant des pertes et dommages eprouves, a raison de la capture et de la saisie du "Car- thage," par les particuliers interesses au navire et a son expedition.
II n'y a pas lieu de donner suite aux autres reclamations contenues dans les conclusions des deux Parties.
Fait a La Haye, dans THotel de la Cour Permanente d'Arbitrage, le 6 mai 1913.
Le President: Hj. L. HAMMARSKJOLD Le Secretaire general: MICHIELS VAN VERDUYNEN Le Secretaire: ROELL
THE CARTHAGE CASE 561
Agreement for Arbitration, March 6, 1912*
Le Gouvernement de la Republique Frangaise et le Gouvernement Royal Italian, s'etant mis d'accord le 26 Janvier 1912 par application de la Convention d'arbitrage du 25 decembre 1903, renouvelee le 24 decembre 1908 pour confier a un Tribunal d'arbitrage 1'examen de la capture et de la saisie momentanee du vapeur postal franc.ais "Car- thage" par les autorites navales italiennes, ainsi que la mission de se prononcer sur les consequences qui en derivent,
Les soussignes, dument autorises a cet effet, sont convenus du Com- promis suivant:
ARTICLE 1
Un Tribunal arbitral, compose comme il est dit ci-apres, est charge de resoudre les questions suivantes:
1°. Les autorites navales italiennes etaient-elles en droit de proceder comme elles ont fait a la capture et a la saisie momentanee du vapeur postal francais "Carthage"?
2°. Quelles consequences pecuniaires ou autres doivent resulter de la solution donnee a la question precedente?
ARTICLE 2
Le Tribunal sera compose de cinq Arbitres que les deux Gouverne- ments choisiront parmi les Membres de la Cour permanente d'Arbitrage de La Have, en designant celui d'entre eux qui remplira les fonctions de Surarbitre.
ARTICLE 3
A la date du 15 juin 1912, chaque Partie deposera au Bureau de la Cour permanente d'Arbitrage quinze exemplaires de son memoire, avec les copies certifiees conformes de tous les documents et pieces qu'elle compte invoquer dans la cause.
Le Bureau en assurera sans retard la transmission aux Arbitres et aux Parties, savoir deux exemplaires pour chaque Arbitre, trois exem- plaires pour la Partie adverse; deux exemplaires resteront dans les archives du Bureau.
A la date du 15 aout 1912, chaque Partie deposera dans les memes conditions que ci-dessus son contre-memoire avec les pieces a Tappui et ses conclusions finales.
ARTICLE 4
Chacune des Parties deposera au Bureau de la Cour permanente d'Arbitrage de La Haye, en meme temps que son memoire et a titre de provision, une somme qui sera fixee d'un commun accord.
ARTICLE 5
Le Tribunal se reunira a La Haye, sur la convocation de son Presi- dent, dans la deuxieme quinzaine du mois de septembre 1912.
'Official report, p. 5.
562 ORIGINAL TEXTS
ARTICLE 6
Chaque Partie sera representee par un Agent avec mission de servir d'intermediaire entre elle et le Tribunal.
Le Tribunal pourra, s'il Testime necessaire, demander a Tun ou a 1'autre des Agents de lui fournir des explications orales ou ecrites auxquelles 1* Agent de la Partie adverse aura le droit de repondre.
ARTICLE 7
La langue f ranc.aise est la langue du Tribunal. Chaque Partie pourra faire usage de sa propre langue.
ARTICLE 8
La sentence du Tribunal devra etre rendue dans le plus bref delai possible et dans tous les cas dans les trente jours qui suivront la cloture des debats. Toutefois, ce delai pourra etre prolonge a la de- mande du Tribunal et du consentement des Parties.
ARTICLE 9
Le Tribunal est competent pour regler les conditions d'execution de sa sentence.
ARTICLE 10
Pour tout ce qui n'est pas prevu par le present Compromis, les dis- positions de la Convention de La Haye du 18 octobre 1907 pour le reglement pacifique des conflits intemationaux seront applicables au present Arbitrage.
Fait en double a Paris, le 6 mars 1912.
Signer L. RENAULT Signe: G. FUSINATO
Joint Note of Janitary 26, 1912, concerning the Settlement of the "Carthage" and "Manouba" Cases'
L'ambassadeur de France et le ministre des Affaires etrangeres d'ltalie ayant examine dans Tesprit le plus cordiel les circonstances qui ont precede et suivi I'arret et la visite par un croiseur italien de deux vapeurs franqais se rendant de Marseille a Tunis, ont etc heureux de constater, d'un commun accord et avant toute autre consideration, qu'il n'en resultait de la part d'aucun des deux pays aucune intention contraire aux sentiments de sincere et constante amite qui les unissent.
Cette constatation a amene sans difficulte les deux gouvernements a decider:
1°. Que les questions derivant de la capture et de I'arret momen- tane du vapeur Carthage, seront deferees a Texamen de la cour d'arbi-
*Le Memorial Diplomatique, January 28, 1912, p. 57.
THE CARTHAGE CASE 563
trage de La Haye, en vertu de la convention d'arbitrage franco- italienne du 23 decembre 1903, renouvelee le 24 decembre 1908;
2°. Qu'en ce qui concerne la saisie du vapeur Manouba et des passagers ottomans qui y etaient embarques, cette operation ayant ete effectuee, d'apres le gouvernement italien, en vertu des droits qu'il declare tenir des principes generaux du droit international et de 1'arti- cle 47 de la declaration de Londres de 1909, les circonstances speciales dans lesquelles cette operation a ete faite et les consequences qui en decoulent seront egalement soumises a 1'examen de la haute juridiction Internationale institute a La Haye; que dans le but de retablir le statu quo ante en ce qui concerne les personnes, les passagers ottomans saisis, ces derniers seront remis au consul de France a Cagliari, pour etre reconduits par ses soins a leur lieu d'embarquement, sous la re- sponsabilite du gouvernement frangais, qui prendra les mesures neces- saires pour empecher que les passagers ottomans n'appartenant pas au "Croissant Rouge," mais a des corps combattants, se rendent d'un port frangais en Tunisie ou sur le theatre des operations militaires.
Agreement of April 4, 1912, supplementary to the Agreements for Arbitration in the "Carthage" and "Manouba" Cases1
Le Gouvernement de la Republique Francaise et le Gouvernement Royal Italien ayant pris connaissance des deux Compromis, etablis le 6 mars 1912 par MM. Louis Renault et Fusinato, en vue de regler par 1'arbitrage devant la Cour de la Haye les incidents relatifs a la saisie du Carthage et a la saisie du Manouba, declarent en approuver les termes et se considerent comme lies par leur texte;
11s designent, d'un commun accord, pour constituer le tribunal arbi- tral les membres suivants de la Cour d'arbitrage de La Haye:
M. Guido Fusinato, docteur en droit, ancien ministre de FInstruction Publique, ancien professeur de droit international a 1'universite de Turin, depute, conseiller d'fitat;
M. Knut Hjalmar Leonard de Hammarskjold, docteur en droit, ancien ministre de la Justice, ancien ministre des Cultes et de 1'Instruc- tion Publique, ancien envoye extraordinaire et ministre plenipoten- tiaire a Cop>enhague, ancien president de la Cour d'appel de Jonkoping, ancien professeur a la faculte de droit d'Upsal, gouverneur de la province d'Upsal;
M. Kriege, docteur en droit, conseiller intime actual de legation, directeur au departement des Affaires fitrangeres;
M. Louis Renault, ministre plenipotentiaire, professeur a la faculte de droit de Paris, jurisconsulte du ministere des Affaires fetrangeres;
M. le baron Taube, membre permanent du Conseil du ministere des Affaires fitrangeres, professeur de droit international a 1'Universite imperiale de Saint-Petersbourg, conseiller d'foat;
1Official report, Memoire of the French Republic, p. 7, note 2.
564 ORIGINAL TEXTS
dent du tribunal.
M. de Hammarskjold remplira les fonctions de Surarbitre ou Presi-
Les deux Gouvernements conviennent de fixer a 3,000 florins neer- landais la somme a deposer par chacun d'eux, conf ormement a Tarticle 4 de chaque Compromis, etant entendu que ladite somme est destinee a servir de provision pour toutes les affaires dont le tribunal arbitral ci-dessus designe sera charge de connaitre.
Les deux Gouvernements se reservent la faculte de modifier, d'un commun accord, rarticle 5 de chacun des Compromis en ce qui touche la date de la reunion du tribunal arbitral.
Fait a Paris, le 4 avril 1912.
(L. S.) Signe: R. POINCARE (L. S.) Signe: M. RUSPOLI
THE MANOUBA CASE
Award of the Tribunal, May 6,
Considerant que, par un Accord du 26 Janvier 1912 et par un Com- promis du 6 mars suivant, le Gouvernement de la Republique Fran- gaise et le Gouvernement Royal Italien sont convenus de soumettre a un Tribunal Arbitral compose de cinq Membres la solution des ques- tions suivantes:
1°. Les autorites navales italiennes etaient-elles, d'une fagon generale et d'apres les circonstances speciales ou Toperation a etc accomplie, en droit de proceder comme elles ont fait a la capture et a la saisie mo- mentanee du vapeur postal francais "Manouba" ainsi qu'a arrestation des vingt-neuf passagers ottomans qui s'y trouvaient embarques?
2°. Quelles consequences pecuniaires ou autres doivent resulter de la solution donnee a la question precedente?
Considerant qu'en execution de ce Compromis les deux Gouverne- ments ont choisi, d'un commun accord, pour constituer le Tribunal Arbitral les Membres suivants de la Cour Permanente d* Arbitrage:
Son Excellence Monsieur Guida Fusinato, Docteur en droit, Ministre d'Etat, ancien Ministre de 1'Instruction publique, Professeur honoraire de droit international a TUniversite de Turin, Depute, Ccwiseiller d'Etat;
Monsieur Knut Hjalmar Leonard de Hammarskjold, Docteur en droit, ancien Ministre de la Justice, ancien Ministre des Cultes et de Tlnstruction publique, ancien Envoye extraordinaire et Ministre pleiii- potentiaire a Copenhague, ancien President de la Cour d'appel de Jonkoping, ancien Professeur a la Faculte de droit d'Upsal, Gou- verneur de la province d'Upsal ;
Monsieur Kriege, Docteur en droit, Conseiller actuel intime de Le- gation et Directeur au Departement des Affaires Etrangeres, Plenipo- tentiaire au Conseil Federal Allemand;
Monsieur Louis Renault, Ministre plenipotentiaire, Membre de Tlnstitut, Professeur a la Faculte de droit de 1'Universite de Paris et a TEcole libre des sciences politiques, Jurisconsulte du Ministere des Affaires Etrangeres ;
Son Excellence le Baron Michel de Taube, Docteur en droit, Adjoint du Ministre de I'lnstruction publique de Russie, Conseiller d'Etat actuel;
que les deux Gouvernements ont, en meme temps, designe Monsieur de Hammarskjold pour remplir les fonctions de President.
Considerant que, en execution du Compromis du 6 mars 1912, les Memoires et Contre-Memoires ont etc dument echanges entre les Parties et communiques aux Arbitres;
^Official report, p. 119.
566 ORIGINAL TEXTS
Considerant que le Tribunal, constitue comme il est dit ci-dessus, s'est reuni a La Haye le 31 mars 1913;
que les deux Gouvernements ont respectivement designe comme Agents et Conseils,
le Gouvernement de la Republique Franchise :
Monsieur Henri Fromageot, Avocat a la Cour d'appel de Paris, Jurisconsulte suppleant du Ministere des Affaires Etrangeres, Con- seiller du Departement de la Marine en droit international, Agent ;
Monsieur Andre Hesse, Avocat a la Cour d'appel de Paris, Membre de la Chambre des Deputes, Conseil ;
Le Gouvernement Royal Italien :
Monsieur Arturo Ricci-Busatti, Envoye extraordinaire et Ministre plenipotentiaire, Chef du Bureau du Contentieux et de la Legislation au Ministere Royal des Affaires Etrangeres, Agent;
Monsieur Dionisio Anzilotti, Professeur de droit international a 1'Universite de Rome, Conseil.
Considerant que les Agents des Parties ont presente au Tribunal les conclusions suivantes, savoir,
1* Agent du Gouvernement de la Republique Franchise:
PLAISE AU TRIBUNAL,
Sur la premiere question posee par le Compromis,
Dire et juger que les autorites na vales italiennes n'etaient pas, d'une fagon generate et d'apres les circonstances speciales ou Toperation a etc accomplie, en droit de proceder comme elles ont fait a la capture et a la saisie momentanee du vapeur postal frangais "Manouba" ainsi qu'a 1'arrestation des vingt-neuf passagers ottomans qui s'y trouvaient embarques.
Sur la seconde question posee par le Compromis,
Dire que le Gouvernement Royal Italien sera tenu de verser au Gouvernement de la Republique Franchise la somme de un franc de dommages-interets, a titre de reparation morale de Tatteinte portee a Thonneur du pavilion frangais;
Dire que le Gouvernement Royal Italien sera tenu de verser au Gouvernement de la Republique la somme de cent mille francs, a titre de sanction et de reparation du prejudice politique et moral resultant de Tinfraction par le Gouvernement Royal Italien a ses engagements conventionnels generaux et speciaux et notamment a la Convention de la Haye du 18 octobre 1907 relitvue a certaines restrictions au droit de capture dans la guerre maritime, article 2, a la Convention de Geneve du 6 juillet 1906 pour r amelioration du sort des blesses et malades dans les armees en campagne, article 9, et a Taccord verbale- ment intervenu entre les deux Gouvernements, le 17 Janvier 1912, relativement au controle des passagers embarques sur le paquebot "Manouba" ;
Dire que ladite somme sera versee au Gouvernement de la Repu- blique pour le benefice en etre attribue a telle oeuvre ou institution d'interet international qu'il plaira au Tribunal d'indiquer;
THE MANOUBA CASE 567
Dire que le Gouvernement Royal Italien sera tenu de verser au Gouvernement de la Republique Franchise la somme de cent huit mille six cent un francs soixante-dix centimes, montant des indemnites reclamees par les particuliers interesses, soit dans le paquebot "Manouba," soit dans son expedition;
Subsidiairement et pour le cas ou, sur ce dernier chef, le Tribunal ne se croirait pas suffisamment eclairee,
Dire, avant faire droit, que, par tel ou tels de ses membres qu'il commettra a cet effet, il sera precede, dans la Chambre de ses delibera- tions et en presence des Agents et Conseils des deux Gouvernements, a Pexamen des diverses reclamations des particuliers interesses;
Dans tous les cas, et par application de Tarticle 9 du Compromis,
Dire que, a 1'expiration d'un delai de trois mois a compter du jour de la sentence, les sommes mises a la charge du Gouvernement Royal Italien et non encore versees seront producttves d'interets a raison de quatre pour cent par an.
Et 1' Agent du Gouvernement Royal Italien:
PLAISE AU TRIBUNAL,
Sur la premiere question posee par le Compromis,
Dire et juger que les autorites navales italiennes etaient pleinement en droit de proceder comme elles ont fait a la capture et a la saisie momentanee du vapeur postal frangais "Manouba" ainsi qu'a Tarresta- tion des vingt-neuf passagers ottomans sur lesquels pesait le soupc.cn qu'ils etaient des militaires, et dont le Gouvernement Italien avait le droit de controler la veritable qualite.
En consequence et sur la seconde question,
Dire et juger qu'aucune consequence pecuniaire ou autre ne saurait resulter a la charge du Gouvernement Italien de la capture et de la saisie momentanee du vapeur postal franqais "Manouba";
Dire et juger que le Gouvernement Francois a pretendu a tort qu'on lui remit les passagers ottomans qui se trouvaient legalement entre les mains des autorites italiennes ;
Dire que le Gouvernement de la Republique sera tenu de verser au Gouvernement Royal la somme de cent mille francs a titre de sanction et de reparation du prejudice materiel et moral resultant de la viola- tion du droit international, notamment en ce qui concerne le droit que le belligerant a de verifier la qualite d'individus soupgonnes etre des militaires ennemis, trouves a bord de navires de commerce neutres;
Dire que ladite somme sera versee au Gouvernement Royal Italien pour etre attribute a telle oeuvre ou institution d'interet international qu'il plaira au Tribunal d'indiquer ;
Subsidiairement et pour le cas ou le Tribunal ne croirait pas devoir admettre cette forme de sanction,
Dire que le Gouvernement de la Republique sera tenu de reparer le tort fait au Gouvernement Royal Italien de telle maniere qu'il plaira au Tribunal d'indiquer ;
Dans tous les cas,
568 ORIGINAL TEXTS
Dire que le Gouvernement de la Republique sera tenu de verser au Gouvernement Royal Italien la somme de quatre cent quatorze francs quarante-cinq centimes, montant des frais occasionnes par la saisie du "Manouba";
Dire que, a Texpiration d'un delai de trois mois a compter du jour de la sentence, les sommes mises a la charge du Gouvernement de la Republique et non encore versees seront productives d'interets a raison de quatre pour cent par an.
Considerant que, apres que le Tribunal cut entendu les exposes oraux des Agents des Parties et les explications qu'ils lui ont fournies sur sa demande, les debats ont etc dument declares clos.
EN FAIT:
Considerant que le vapeur postal frangais "Manouba," de la Com- pagnie de Navigation Mixte, au cours d'un voyage regulier entre Marseille et Tunis, fut arrete dans les parages de Tile de San Pietro, le 18 Janvier 1912, vers 8 heures du matin, par le contre-torpilleur de la Marine Royale Italienne "Agordat" ;
Considerant que, apres constatation de la presence, a bord dudit vapeur, de vingt-neuf passagers turcs, soupgonnes d'appartenir a Tarmee ottomane, le "Manouba" fut conduit sous capture a Cagliari;
Considerant que, arrive dans ce port le meme jour, vers 5 heures du soir, le capitaine du "Manouba" fut somme de livrer les vingt-neuf passagers susmentionnes aux autorites italiennes et que, sur son refus, ces autorites procederent a la saisie du vapeur;
Considerant enfin que, sur Tinvitation du Vice-Consul de France a Cagliari, les vingt-neuf passagers turcs furent livres le 19 Janvier, a 4 heures 30 de 1'apres-midi, aux autorites italiennes,
et que le "Manouba," alors relaxe, se remit en route sur Tunis le meme jour, a 7 heures 20 du soir.
EN DROIT:
Considerant que, si le Gouvernement Frangais a du penser, etant donne les circonstances dans lesquelles la presence de passagers otto- mans a bord du "Manouba" lui etait signalee, que, moyennant la promesse de faire verifier le caractere desdits passagers, il exemptait le "Manouba" de toute mesure de visite ou de coercition de la part des autorites navales italiennes, il est etabli qu'en toute bonne foi le Gouvernement Italien n'a pas entendu la chose de cette f agon ;
que, par suite, en 1'absence d'un accord special entre les deux Gouvernements, les autorites navales italiennes ont pu agir conforme- ment au droit commun;
Considerant que, d'apres la teneur du Compromis, 1'operation effectuee par les autorites navales italiennes renferme trois phases successives, savoir: la capture, la saisie momentanee du "Manouba" et Tarrestation des vingt-neuf passagers ottomans qui s'y trouvaient embarques ;
qu'il convient d'examiner d'abord la legitimite de chacune de ces
THE MANOUBA CASE 569
trois phases, regardees comme des actes isoles et independants dc 1' ensemble de Foperation susmentionnee ;
Dans cet ordre d'idees,
Considerant que les autorites navales italiennes avaient, lors de la capture du "Manouba," des motifs suffisants de croire que les pas- sagers ottomans qui s'y trouvaient embarques etaient, au moins en partie, des militaires enroles dans Farmee ennemie;
que ces autorites avaient, par consequent, le droit de se les faire remettre ;
Considerant qu'elles pouvaient, a cet effet, sommer le capitaine de les livrer, ainsi que prendre, en cas de refus, les mesures necessaires pour Fy contraindre ou pour s'emparer de ces passagers ;
Considerant, d'autre part, que, meme etant admis que les passagers ottomans aient pu etre considered comme formant une troupe ou un detachement militaire, rien ne permettait de revoquer en doute Fentiere bonne foi de Farmateur et du capitaine du "Manouba";
Considerant que, dans ces circonstances, les autorites navales italiennes n'etaient pas en droit de capturer le "Manouba," et de le faire devier pour suivre F"Agordat" a Cagliari, si ce n'est comme moyen de contrainte et apres que le capitaine cut refuse d'obeir a une sommation de livrer les passagers ottomans;
que, aucune sommation de ce genre n'ayant eu lieu avant la capture, Facte de capturer le "Manouba" et de Famener a .Cagliari n'etait pas legitime ;
Considerant que, la sommation faite a Cagliari etant restee sans effet immediat' les autorites navales italiennes avaient le droit de prendre les mesures de contrainte necessaires et, specialement, de retenir le "Manouba" jusqu'a ce que les passagers ottomans fussent livres ;
que la saisie effectuee n'etait legitime que dans les limites d'un sequestre temporaire et conditionnel ;
Considerant enfin que les autorites navales italiennes avaient le droit de se faire livrer et d'arreter les passagers ottomans.
Pour ce qui concerne Fensemble de Foperation,
Considerant que les trois phases dont se compose Foperation unique prevue par le Compromis doivent etre appreciees en elles-memes, sans que Fillegalite de Fune d'elles doive, dans lrespece, influer sur la regularite des autres;
que Fillegalite de la capture et de la conduite du "Manouba" a Cagliari n'a pas vicie les phases posterieures de Foperation;
Considerant que la capture ne pourrait non plus etre legitimee par la regularite, relative ou absolue, de ces dernieres phases envisagees separement.
Sur la demande tendant a faire condamner le Gouvernement Royal Ttalien a verser a titre de dommages-interets :
1°. la somme de un franc pour atteinte portee au pavilion f ranqais ;
2°. la somme de cent mille francs pour reparation du prejudice moral et politique resultant de Finobservation du droit commun inter- national et des conventions reciproquement obligatoires pour FItalie comme pour la France,
570 ORIGINAL TEXTS
Et sur la demande tendant a faire condamner le Gouvernement de la Republique Francaise a verser la somme de cent mille francs a titre de sanction et de reparation du prejudice material et moral resultant de la violation du droit international, notamment en ce qui concerne le droit que le belligerant a de verifier la qualite d'individus soupcpnnes etre des militaires ennemis, trouves a bord de navires de commerce neutres,
Considerant que, pour le cas ou une Puissance aurait manque a rem- plir ses obligations, soit generates, soit speciales, vis-a-vis d'une autre Puissance, la constatation de ce fait, surtout dans une sentence arbi- trale, constitue deja une sanction serieuse;
que cette sanction est renforcee, le cas echeant, par le paiement de dommages-interets pour les pertes materielles;
que, en these generale et abstraction faite de situations particulieres, ces sanctions paraissent suffisantes;
que, egalement en these generale, 1'introduction d'une autre sanction pecuniaire parait etre superflue et depasser le but de la juridiction internationale ;
Considerant que, par application de ce qui vient d'etre dit, les cir- constances de la cause presente ne sauraient motiver une telle sanction supplemental ; que, sans autre examen, il n'y a done pas lieu de donner suite aux demandes susmentionnees.
Sur la demande de 1* Agent francais tendant a ce que le Gouverne- ment Royal Italien soit tenu de verser au Gouvernement de la Re- publique Franchise la somme de cent huit mille six cent un francs soixante-dix centimes, montant des indemnites reclamees par les par- ticuliers interesses, soit dans le vapeur "Manouba," soit dans son expedition,
Considerant qu'une indemnite est due pour le retard occasionne au "Manouba" par sa capture non justifiee et sa conduite a Cagliari, mais qu'il y a lieu de tenir compte du retard provenant du refus non legitime du capitaine de livrer a Cagliari les vingt-neuf passagers turcs et aussi du fait que le navire n'a pas etc entierement detourne de sa route sur Tunis ;
Considerant que, si les autorites navales italiennes ont opere la saisie du "Manouba" au lieu du sequestre temp)oraire et conditionnel qui etait legitime, il apparait que, de ce chef, les interesses n'ont pas eprouve de pertes et dommages;
Considerant que, en faisant etat de ces circonstances et aussi des f rais occasionnes au Gouvernement Italien par la surveillance du navire retenu, le Tribunal, apres avoir entendu les explications concordantes de deux de ses Membres charges par lui de proceder a une enquete sur lesdites reclamations, a evalue a quatre mille francs la somme due a 1'ensemble des interesses au navire et a son expedition.
PAR CES MOTIFS,
Le Tribunal Arbitral declare et prononce ce qui suit:
Pour ce qui concerne Tensemble de Toperation visee dans le premiere question posee par le Compromis,
THE MANOUBA CASE 571
Les diffcrentes phases de cette operation ne doivent pas etre con- siderees comme connexes en ce sens que le caractere de 1'une doive, dans 1'espece, influer sur le caractere des autres.
Pour ce qui concerne les differentes phases de ladite operation, appreciees separement,
Les autorites navales italiennes n'etaient pas, d'une facpn generate et d'apres les circonstances speciales ou 1'operation a etc accomplie, en droit de proceder comme elles ont fait a la capture du vapeur postal franqais "Manouba" et a sa conduite a Cagliari;
Le "Manouba" une fois capture et amene a Cagliari, les autorites navales italiennes etaient, d'une fagon generale et d'apres les circon- stances speciales ou 1'operation a etc accomplie, en droit de proceder comme elles ont fait a la saisie momentanee du "Manouba," dans la mesure ou cette saisie ne depassait pas les limites d'un sequestre tem- poraire et conditionnel, ayant pour but de contraindre le capitaine du "Manouba" a livrer les vingt-neuf passagers ottomans qui s'y trou- vaient embarques ;
Le "Manouba" une fois capture, amene a Cagliari et saisi, les auto- rites navales italiennes etaient, d'une fagon generale ct d'apres les cir- constances speciales ou 1'operation a etc accomplie, en droit de proceder comme elles ont fait a 1'arrestation des vingt-neuf passagers ottomans qui s'y trouvaient embarques.
Pour ce qui concerne la seconde question posee par le Compromis,
Le Gouvernement Royal Italien sera tenu, dans les trois mois de la presente sentence, de verser au Gouvernement de la Republique Fran- gaise la somme de quatre mille francs, qui, deduction faite des f rais de surveillance du "Manouba" dus au Gouvernement italien, forme le montant des pertes et dommages eprouves, a raison de la capture et de la conduite du "Manouba" a Cagliari, par les particuliers interesses au navire et a son expedition.
II n'y a pas lieu de donner suite aux autres reclamations contenues dans les conclusions des deux Parties.
Fait a La Haye, dans 1'Hotel de la Cour Permanente d' Arbitrage, le 6 mai 1913.
Lc President: Hj. L. HAMMARSKJOLD Le Secretaire general: MICHIELS VAN VERDUYNEN Le Secretaire: ROELL
Agreement for Arbitration, March 6,
Le Gouvernement de la Republique Francaise et le Gouvernement Royal Italien, s'etant mis d'accord le 26 Janvier 1912 par application de la Convention d'arbitrage franco-italienne du 25 decembre 1903, renouvelee le 24 decembre 1908 pour confier a un Tribunal d'arbitrage 1'examen de la capture et de la saisie momentanee du vapeur postal frangais "Manouba" par les autorites navales italiennes notam-
lOfficial report, p. 9.
572 ORIGINAL TEXTS
ment dans les circonstances speciales ou cette operation a ete accomplie et de Parrestation de vingt-neuf passagers ottomans qui s'y trouvaient embarques, ainsi que la mission de se prononcer sur les consequences qui en derivent,
Les soussignes, dument autorises a cet effet, sont convenus du Com- promis suivant:
ARTICLE 1
Un Tribunal arbitral, compose comme il est dit ci-apres, est charge de resoudre les questions suivantes:
1°. Les autorites navales italiennes etaient-elles, d'une facpn generate et d'apres les circonstances speciales ou 1'operation a ete accomplie, en droit de proceder comme elles ont fait a la capture et a la saisie momentanee du vapeur postal frangais "Manouba," ainsi qu'a 1'arresta- tion des vingt-neuf passagers ottomans qui s'y trouvaient embarques?
2°. Quelles consequences pecuniaires ou autres doivent resulter de la solution donnee a la question precedente?
ARTICLE 2
Le Tribunal sera compose de cinq Arbitres que les deux Gouverne- ments choisiront parmi les Membres de la Cour permanente d' Arbitrage de La Haye, en designant celui d'entre eux qui remplira les fonctions de Surarbitre.
ARTICLE 3
A la date du 15 juin 1912, chaque Partie deposera au Bureau de la Cour permanente d* Arbitrage quinze exemplaires de son memoire, avec les copies certifiees con formes de tous les documents et pieces qu'elle compte invoquer dans la cause.
Le Bureau en assurera sans retard la transmission aux Arbitres et aux Parties, savoir deux exemplaires pour chaque Arbitre, trois exem- plaires pour la Partie adverse; deux exemplaires resteront dans les archives du Bureau.
A la date du 15 aout 1912, chaque Partie deposera dans les memes conditions que ci-dessus, son contre-memoire avec les pieces a Tappui et ses conclusions finales.
ARTICLE 4
Chacune des Parties deposera au Bureau de la Cour permanente d' Arbitrage de La Haye, en meme temps que son memoire et a titre de provision, une somme qui sera fixee d'un commun accord.
ARTICLE 5
Le Tribunal se reunira a La Haye, sur la convocation de son Presi- dent, dans la deuxieme quinzaine du mois de septembre 1912.
ARTICLE 6
Chaque Partie sera represented par un Agent avec mission de servir d'intermediaire entre elle et le Tribunal.
THE MANOUBA CASE 573
Le Tribunal pourra, s'il Testime necessaire, demander a Tun ou a Pautre des Agents de lui fournir des explications orales ou ecrites, auxquelles F Agent de la Partie adverse aura le droit de repondre.
ARTICLE 7
La langue franchise est la langue du Tribunal. Chaque Partie pourra faire usage de sa propre langue.
ARTICLE 8
La sentence du Tribunal sera rendue dans le plus bref delai possible et dans tous les cas dans les trente jours qui suivront la cloture des debats. Toutefois, ce delai pourra etre prolonge a la de- mande du Tribunal et du consent ement des Parties.
ARTICLE 9
Le Tribunal est competent pour regler les conditions d'execution de sa sentence.
ARTICLE 10
Pour tout ce qui n'est pas prevu par le present Compromis, les dis- positions de la Convention de La Have du 18 octobre 1907 pour le reglement pacifique des conflits internationaux seront applicables au present Arbitrage.
Fait en double a Paris, le 6 mars 1912.
Signe: L. RENAULT Signer G. FUSINATO
THE ISLAND OF TIMOR CASE
Award of the Tribunal, June 25, 19 if
Une contestation etant survenue entre le Gouvernement royal neer- landais et celui de la Republique portugaise au sujet de la delimitation d'une partie de leurs possessions respectives dans Tile de Timor, les deux Gouvernements ont decide, par une Convention signee a La Haye le 3 avril 1913 et dont les ratifications ont ete echangees dans la meme ville le 31 juillet suivant, d'en remettre la solution en dernier ressort a un arbitre, et ont a cet effet designe d'un commun accord le soussigne.
Pour comprendre le sens et la portee du compromis du 3 avril 1913, il y a lieu d'exposer succinctement les negotiations qui ont precede ce compromis.
I
HlSTORIQUE
L'ile de Timor, la derniere a Torient de la serie continue des lies de la Sonde et la plus rapprochee de 1'Australie, fut decouverte au XVIme siecle par les Portugais ; cette ile mesure environ 500 kilometres de longueur de Touest a Test sur une largeur de 100 kilometres au maximum. Une haute chaine de montagnes, dont certains sommets atteignent pres de 3,000 metres d'altitude, separe Tile dans le sens de la longueur en deux versants.
La partie orientale de Tile, d'une superficie approximative de 19,000 kilometres carres avec ure population d'environ 300,000 habitants, est portugaise. La partie occidentale, avec une population evaluee en 1907 a 131,000 habitants et une superficie d'environ 20,000 kilometres carres, est sous la souverainete des Pays-Bas, a 1'exception du "Royaume d'Okussi et d'Ambeno," situe sur la cote nord-ouest au milieu de territoires neerlandais de tous les cotes sauf du cote de la mer. Ce nom de "rois" donne par les Portugais aux chefs des tribus s'explique par le fait que, dans la langue indigene, on les appelle Leorey; la syllabe finale de ce mot a ete traduite en portugais par le mot Rey. Les Neerlandais donnent a ces chefs le titre plus modeste de radjahs.
Cette repartition territoriale entre les Pays-Bas et le Portugal repose sur les Accords suivants:
Le 20 avril 1859, un traite signe a Lisbonne et dument ratifie au cours de Tete de 1860, avait determine les frontieres respectives par le milieu de Tile, mais avait laisse subsister (art. 2) 'Tenclave" neer- landaise de Maucatar au milieu des territoires portugais et 'Tenclave"
^Official report, p. 3.
THE ISLAND OF 1 xMOR CASE 575
portugaise d'Oikoussi au milieu des territoires ncerlandais de 1'ouest de Tile. II fut stipule (art. 3) que cette "enclave d'Oikoussi comprend 1'Etat d'Ambenu partout ou y est arbore le pavilion portugais, l'£tat d'Oikoussi proprement dit et celui de Noimuti."
Par une autre Convention signee a Lisbonne le 10 juin 1893 ct dument ratifiee, les deux Gouvernements, "desirant regler dans les conditions les plus favorables au developpement de la civilisation et du commerce" leurs relations dans Tarchipel de Timor, convinrent "d'etablir d'une facpn plus claire et plus exacte la demarcation de leurs possessions" dans cette ile "et de faire disparaitre les enclaves actuelle- ment existantes" (Preambule et art. Ier). Une commission d'experts devait etre designee a 1'effet de "formuler une proposition pouvant ser- vir de base a la conclusion d'une Convention ulterieure determinant la nouvelle ligne de demarcation dans ladite ile" (art. II). En cas de difficultes, les deux Parties s'engageaient "a se soumettre a la decision . . . d'arbitres" (art. VII).
Cette commission mixte se rendit sur les lieux et se mit d'accord en 1898-1899 sur la plus grande partie de la delimitation. Toutefois, tant sur la frontiere principale au milieu de Tile de Timor que sur la frontiere du Royaume d'Okussi-Ambenu dans la partie occidental de Tile, d'assez nombreuses divergences persistaient. La carte annexee sous N°. II indique les preventions respectives. Une Conference fut reunie a La Haye du 23 juin au 3 juillet 1902 pour tacher de les solu- tionner. Elle arreta le 3 juillet 1902 un projet qui fut transforme en Convention diplomatique signee a La Haye le lw octobre 1904 et dument ratifiee.
Les resultats sommaires de cette Convention de 1904 sont figures sur la carte transparente annexee sous N°. I; la superposition de la carte transparente N°. I sur la carte N°. II permet de constater que le Portugal a obtenu, au centre de Tile de Timor, 1'enclave neerlandaise de Maukatar, et que les Pays-Bas ont obtenu dans cette meme region le Tahakay et le Tamira Ailala. D'autre part, au nord-ouest de Tile de Timor et au sud du territoire designe par le traite de 1859 sous le nom d'enclave d'Oikussi, les Pays-Bas obtiennent le Noimuti. Enfin la limite orientale contestee de ce territoire d'Oikussi-Ambeno est fixee theoriquement selon une ligne A-C qui devra etre "arpentee et in- diquee sur le terrain dans le plus court delai possible." (Actes de la Conference de 1902, seances du 27 juin, pages 10 et 11, et du 28 juin, page 12; Convention du ler octobre 1904, article 4.) La ligne A-C admise en Conference fut definie a Particle 3 chiffre 10 de la Conven- tion de 1904 dans les termes suivants: "A partir de ce point" (le confluent de la Noel Bilomi avec TOe-Sunan) "la limite suit le thalweg de TOe-Sounan, traverse autant que possible Nipani et Kelali (Keli), gagne la source de la Noel Meto et suit le thalweg de cette riviere jusqu'a son embouchure."
Tout semblait termine, lorsque les commissaires delimitateurs arrives sur les lieux en juin 1909 pour les operations du bornage de la frontiere orientale de TOikussi-Ambeno ne purent se mettre d'accord et de- ciderent d'en referer a leurs Gouvernements. Les deux Gouverne-
576 ORIGINAL TEXTS
ments ne purent pas davantage se mettre d'accord et deciderent de re- courir a un arbitrage. Quelle etait cette difficulte rencontree par les commissaires delimitateurs ?
II
LA DIFFICULTE QUI A PROVOQUE I/ ARBITRAGE
En procedant aux trauvaux de delimitation de la frontiere orientale de TOikussi-Ambeno, les commissaires avaient commence au nord, sur la cote, et remonte dans la direction du sud le cours de la riviere Noel Meto, qui devait servir de frontiere de son embouchure a sa source. Ces operations eurent lieu entre le ler et le 10 juin 1909, et une borne fut placee a la source de la Noel Meto. Cette source etant dominee par des falaises abruptes impossibles a franchir, les commissaires resolurent une reconnaissance generate du terrain entre la partie sep- tentrionale et la partie meridionale du territoire encore a delimiter, c'est-a-dire entre la source de la Noel Meto au nord et la riviere Noel Bilomi au sud.
Au nord, un premier dissentiment surgit: La carte (voir annexe III) signee en 1904 en meme temps que la Convention, portait le mot Kelali accompagne entre parentheses du mot Keli. Les delegues neerlandais soutinrent que le mot Keli designe, sur le sommet du mont Kelali, un point special situe a 1'ouest de la source de la Noel Meto entre deux pierres "en pic" et qui a ete indique par les indigenes du Tumbaba (neerlandais) comme la limite entre eux et les indigenes (portugais) de 1'Ambeno: ce point est, d'apres les commissaires neer- landais, une "magnifique limite" naturelle qui suit a peu pres la limite figuree sur la carte de 1904. Les commissaires portugais au contraire proposaient "de suivre . . . quelques thalwegs dans le terrain a Test de la ligne proposee par les delegues neerlandais, en partant de la meme borne" placee a la source de la Noel Meto. La commission decida d'arpenter les deux lignes et de laisser la solution aux autorites superieures.
Dans la partie sud, sur la riviere Bilomi, les commissaires constatent, dans leur seance du 17 juin 1909, qu'ils ont suivi de 1'ouest a Test le cours de la Nono Nisi (ou Nise) puis le cours de la Noel Bilomi et qu'ils ont maintenant "atteint Pendroit (ou la commission de 1889 avait termine son travail) ou il faut continuer Farpentage vers le nord." Ce point avait ete designe dans la Convention de 1904, article 3, chiffres 9 et 10, et sur la carte y annexee, comme le confluent de la Noel Bilomi et de TOe Sunan. "Les quatre delegues constatent qu'b cet endroit, il y a deux affluents venant du nord, mats qu'aucun d'euv ne Jappelle l'Oe Simon."
Les delegues neerlandais exposent alors que la contree situee entre ces deux affluents est nommee Sunan, qu'ils ne connaissent d'ailleurs aucun affluent de la Noel Bilomi portant le nom d'Oe Sunan et qu'il n'en existe pas; ils insistent done pour que la ligne frontiere soit arpentee vers le nord a partir du point designe sur les cartes de 1899 et de 1904.
THE ISLAND OF TIMOR CASE 577
Les delegues portugais font observer qu'une rjviere nommee Oe Sunan ou Oil Sunan, qui n'est, il est vrai, pas un affluent de la Bilomi, existe plus a Test et a sa source "tout pres du Bilomi."
Les commissaires decident a 1'unanimite d'arpenter les deux lignes "en partant du point" indique sur les cartes de 1899 et de 1904 et "ou la commission de 1899 a termine son tratvaM," savoir la ligne proposee par les delegues neerlandais dans la direction du nord et la ligne desiree par les Portugais dans la direction de Test (seance du 17 juin 1909, Premier Memoire portugais, page 27).
A la seance du 21 juin 1909 et au cours de 1'arpentage de la ligne frontiere proposee par les delegues portugais dans la direction de Test en remontant la riviere Noel Bilomi, "les quatre delegues constatent unanimement qu'ils n'ont pas rencontre un affluent (de la Noel Bilomi) nomme TOe-Sunan." Les Delegues neerlandais font observer que la Bilomi a, dans cette region, change de nom, a quoi leurs collegues por- tugais repliquent "que la riviere de Bilomi continue toujours, mais que, suivant les usages indigenes, elle porte le nom de la contree qu'elle traverse." Enfin et surtout, les delegues portugais font observer qu'a peu de distance de la Bilomi se trouve, sur la rive nord, un mont Kinapua, sur le versant oppose duquel se trouve une riviere portant le nom d'Oe Sunan et qui coule vers le nord. II suffirait de suivre le cours de cette riviere, de remonter ensuite la riviere Noi Fulan et de relier enfin la source de celle-ci avec la source de la Noel Meto deja reconnue par la commission mixte.
Les delegues neerlandais declarent inutile de proceder a la recon- naissance de cette riviere, car le mont Kinapua et la limite qui resulte- rait de la proposition portugaise sont en dehors du territoire qui t'tait conteste en 1899; le mont Tasona figure sur la carte de 1899 sur I'extreme limite orientale des pretensions portugaises d'alors, preten- tions que le traite de 1904 a ecartes; il ne saurait done etre question d'une delimitation allant encore plus loins vers Test.
Les travaux de la Commission mixte furent suspendus et la ques- tion, portee sur le terrain diplomatique, donna lieu a un long echange de correspondances entre les cabinets de La Haye et de Lisbonne.
Ces correspondances ont abouti a Paccord de 1913 confiant a 1'arbitre le mandat de decider, d'apres "les donnees fournies par les parties," et, en se basant sur les principes generaux du droit, comment doit etre fixee, conformement a Tart. 3, 10 de la Convention conclue a La Haye le ler octobre 1904 . . ., la limite a partir de la Noel Bilomi jusqu'a la source de la Noel Meto."
Ill
LE POINT DE VUE PORTUGAIS
Les principaux arguments invoques par le Gouvernement de la Republique portugaise en faveur de la these soutenue par ses commis- saires delimitateurs peuvent etre resumes comme suit:
1. Au point ou les travaux de delimitation de 1899 ont ete arretes
578 ORIGINAL TEXTS
et ou, d'apres le traite de 1904 et d'apres la carte y annexee, la Noel Bilomi doit recevoir un affluent du nom de l'Oe Sunan, il est reconnu d'un commun accord qu'il n'existe aucun affluent de ce nom.
2. II existe au contraire, plus a Test, une riviere Oe Sunan qui n'est pas, il est vrai, un affluent de la Bilomi, mais qui prend sa sources tres pres de cette riviere Bilomi, sur le versant nord de la montagne Kinapua; sur le mont Kinapua se trouve une borne proclamee par de nombreux chefs indigenes comme ayant servi de limite reconnue entre Its Ambenos portugais et les Tumbabas neerlandais. De ce meme mont Kinapua descend vers la Bilomi un ruisseau, et, du sommet, ces deux cours d'eau semblent se continuer. D'apres les chefs indigenes, le cours de cette riviere Oe Sunan est la limite historique et naturelle entre les Ambenos portugais d'une part et les Tumbabas et les Amako- nos neerlandais d'autre part.
3. Les memes chefs indigenes font rentrer dans 1'Ambeno toute la region comprise entre cette riviere d'Oe Sunan a Test, la riviere Ni Fullan au nord, et le territoire incontestablement portugais de 1'Oikoussi Ambeno a 1'ouest des monts Kelalai et Netton. Sur une carte privee publiee a Batavia, le nom d' Ambeno se trouve meme en entier inscrit dans la partie revendiquee a tort aujourd'hui par les Pays-Bas.
4. Le traite de 1859 pose en principe que les £tats indigenes ne doivent pas etre separes, morceles; or la delimitation proposee par les Pays-Bas coupe le territoire des Ambenos et priverait ces indigenes de leurs paturages et terrains maraichers qui se trouveraient par la situes a 1'orient de la f rontiere et en territoire neerlandais.
5. Rien ne prouve que le bornage a effectuer doive necessairement commencer au point ou le travail de delimitation avait etc suspendu en 1899 a la suite d'hostilites entre les indigenes et marque sur les cartes au confluent de la Bilomi avec le ruisseau 1'Oe Sunan qui n'existe pas en realite a cet endroit. A cet endroit se trouvent deux affluents : le Kaboun et le Nono-Offi. Ponrquoi suivre vers le nord le cours du Kaboun plutot que celui du Nono-Offi qui vient du nord-est et qui se jette au meme point dans la Bilomi?
Dans la pensee du Gouvernement portugais, on a voulu seulement donner dans les cartes de 1899 et 1904 aux commissaires delimitateurs "un graphique destine a fixer les idees, et comme une vague «rt simple indication de ce qui devait etre regie plus tard."
La veritable intention des Signataires du traite de 1904 a ete de suivre le cours de 1'Oe Sunan, la ou il est en realite, c'est-a-dire beau- coup plus a Test. Rien n'empeche done, dans 1'esprit du traite, de remonter la Bilomi jusqu'au point le plus rapproche de la source du vrai Oe Sunan, source si rapprochee du cours de la Bilomi qu'elle en [est] presque un affluent.
6. La ligne proposee par les Pays-Bas qui, d'apres le traite de 1904, doit "traverser autant que possible Nipani et Kelalai (Keli)" ne tra- verse pas Nipani, mais touche seulement Fatu Nipani, c'est-a-dire Pextremite occidentale de Nipani. Elle ne repond done pas au pro- gramme de 1904.
THE ISLAND OF TIMOR CASE 579
7. La ligne proposee par les Pays-Bas ne constitue pas une f rontiere natvrelle, tandis que celle suggeree par le Portugal suit des cours d'eau sur presque tout son parcours.
IV
LE POINT DE VUE NEERLANDAIS
Les principaux arguments du Gouvernement royal neerlandais peuvent etre resumes comme suit:
1. Le traite de 1859 n'avait nullement prescrit d'une fac.on impera- tive que les territoires indigenes ne doivent pas etre devises ou mor- celes. II a, au contraire, attribue au Portugal "1'fitat d'Ambenu par- tout ou y est arbore le pavilion portugais," sanctionnant ainsi non seulement la division d'un £tat indigene, mais precisement la division de 1'fitat d'Ambenu et cela dans les termes suivan's: "La Neerlande cede au Portugal . . . cette partie de 1'Etat d'Ambenu ou d'Am- beno qui, depuis plusieurs annees, a arbore le pavilion portugais."
Au surplus, le traite de 1859 a pu etre et a etc effectivement modifie par les traites subsequents et ce sont les traites subsequents qui, aujourd'hui, doivent seuls etre pris en consideration la ou ils ont modifie le traite de 1859.
2. II n'existe aucune incertitude sur le point auquel les commissaires delimitateurs se sont arretes en 1899. Ce point a servi de base aux negociations de 1902 et a ete repere sur la carte (annexe III) signee alors par les negociateurs des deux Pays pour etre jointe au projet de traite. Ce projet de 1902 est devenu le traite de 1904. Cest de ce point et non d'un autre que part la ligne A-C, admise en 1902 comme devant former la f rontiere (carte annexe I). Cette ligne A-C se dirige de ce point vers le nord jusqu'a la source de la riviere Noel Meto et la frontiere doit suivre ensuite ce cours d'eau jusqu'a son embouchure dans la mer au nord.
L'emplacement de la source de la Noel Meto a ete contradictoire- ment reconnu en 1909 ; une borne y a ete plantee d'un commun accord. La discussion ne porte que sur le trace entre cette souice et le point A situe a 1'endroit ou les commissaires se sont arretes en 1899.
3. Sur la carte officielle de 1899 (annexe IV) comme sur la carte officielle de 1904 (annexe III), figure au point dont il s'agit un affluent venant du nord et auquel on a, par une erreur que les Pays-Bas ne contestent pas, donne a tort le nom d'Oe Sunan. Cet affluent, qui porte en realite chez les Tumbabas le nom de Kabun et chez les Ambe- nos celui de Leos, repond entierement a Tintention des Parties con- tractantes, qui etait de suivre, a partir du point A, un affluent venant du nord dans la direction AC. L'erreur de nom a d'autant moms de portee que, tres frequemment dans la region, les cours d'eau portent plusieurs noms, ou changent de nom, ou portent le nom de la contree qu'ils traversent; or la region a Test du Kabun ou Leos (1'Oe Sunan de 1904) porte, d'apres le Gouvernement portugais, le nom a conson- nance analogue d'Hue Son, et d'apres les commissaires neerlandais celui de Sunan, ce qui peut expliquer 1'erreur des commissaires.
580 ORIGINAL TEXTS
4. Les chefs indigenes de I'Amakono (neerlandais) ont declare (commission mixte, seance du 21 fevrier 1899) que leur pays com- prend toute la region "situee entre TOe Sunan, Nipani, Kelali-Keli, et la Noel Meto (a 1'ouest), la mer de Timor (au nord), la Noel Boll Bass, les sommets Humusu et Kin Napua (a Test), Tasona, la Noel Boho et la Noel Bilomi (au sud)." Or la frontiere occidentale decrite ici et indiquee des 1899 comme separant les Amakonos (neerlandais) de 1'Ambeno (portugais) est precisement celle qui a etc consacree par le traite de 1904. L'Oe Sunan qui y figure ne peut etre que le cours d'eau auquel on a donne a tort mais d'un commun accord ce nom dans les cartes officielles de 1899 et de 1904, c'est-a-dire un cours d'eau situe a 1'ouest du territoire conteste, et non le pretendu Oe Sunan actuellement invoque par le Portugal, et qui est situe sur la frontiere orientate du territoire conteste. Le traite de 1904 a attribue aux Pays-Bas ce territoire conteste. C'est done bien le cours d'eau, peu importe son nom, situe a 1'ouest dudit territoire que les parties ont entendu adopter comme limite.
La preuve que le Portugal n'a pu, en 1899 et 1904, avoir en vue la riviere orientale a laquelle il donne maintenant le nom d'Oe Sunan, est fournie par le fait qu'a la seance du 21 fevrier 1899, ses commis- saires ont propose comme limite une ligne partant du point ou la riviere appelee alors Oe Sunan se jette dans la Bilomi et remontant ensuite vers Test la Noel Bilomi jusqu'a Nunkalai (puis traversant Tasona et, a partir de Kin Napua se dirigeant vers le nord jusqu'a Humusu et a la source de la Noel Boll Bass dont le cours aurait servi de frontiere jusqu'a son embouchure dans la mer). Cette proposition portugaise de 1899 serait incomprehensible s'il s'agissait d'une riviere autre que celle figurant sur les cartes officielles de 1899 et 1904 sous le nom d'Oe Sunan; comment pourrait-il etre question d'une autre riviere Oe Sunan situee a Vest de Nunkalai, alors que Nunkalai est, en realite, a Vouest de ce nouvel Oe Sunan decouvert par les Portugais et non pas a Test?
5. Deux enquetes recentes institutes par les autorites neerlandaises de Tile de Timor ont, d'ailleurs, confirme qu'aucune riviere du nom d'Oe Sunan ne prend sa source sur le mont Kinapua; la riviere qui prend sa source sur le versant nord, a une certaine distance du sommet, porte les noms de Poeamesse ou de Noiepolan et se jette a Fatoe Metassa (Fatu Mutassa des Portugais) dans la Noel Manama, la Ni Fullan des cartes portugaises (Second Memoire neerlandais, chiffre VII, page 6).
6. II est exact que la ligne proposee par les Pays-Bas ne traverse pas le territoire de Nipani, mais le traite de 1904 ne 1'exige pas. II stipule que la ligne destinee a relier la source de 1'Oe Sunan a la source de la Noel Meto traversera "autant que possible Nipani." Comme le terri- toire a delimiter etait inexplore, les mots "autant que possible" etaient justifies ; en fait, la ligne suggeree par les Pays-Bab, si elle ne traverse pas tout le territoire de Nipani, en traverse 1'extremite occidentale ap- pelee Fatu Nipani. Or, d'apres les declarations consignees au proces-
THE ISLAND OF TIMOR CASE 581
verbal de delimitation du 21 fevrier 1899, les indigenes, en designant TOe Sunan, Nipani, Kelali et la Noel Meto comme la frontiere orien- tale de TOkussi Ambeno (portugais) et comme la f rontiere occidentale de TAmakono (neerlandais), avaient eu en vue la masse rocheuse de Fatu Nipani formant I'extremite occidentale de Nipani.
7. La f rontiere proposee par les Pays-Bas est une frontiere naturelle formee par une chaine de montagnes separant partout les cours d'eau.
II n'a jamais etc present ou recommande en 1902-1904 de suivre avant tout des cours d'eau comme limite, et, sur la frontiere meri- dionale de 1'Okussi-Ambeno, on a, sur plusieurs points, notamment lorsque la ligne passait du bassin d'une riviere dans un autre, place des bornes d'un commun accord (Voir notamment 1'art. 3 de la Con- vention de 1904, chiffres 2, 3 et 4).
II suffira aussi de quelques bornes pour delimiter la frontiere sur la ligne de faite proposee par les Pays-Bas.
Le trace reclame par le Portugal exigerait d'ailleurs lui aussi des bornes dans la region du mont Kinapua entre la Bilomi et le pretendu nouvel Oe Sunan, et en outre dans la region entre la source de la Noel Meto et la riviere a laquelle les Portugais donnent le nom de Ni Fulan c'est-a-dire aux deux extremites du trace portugais.
8. La ligne que le Portugal propose aujourd'hui reproduit en sub- stance ses pretentious de 1899 et de 1902 dans cette region. Or il est incontestable qu'en acceptant a la Conference de 1902 et en consignant dans le traite de 1904 la ligne AC, le Portugal a cede un territoire auquel il pretendait auparavant. 11 ne saurait equitablement revendi- quer aujourd'hui ce meme territoire.
V
LES REGLES DE DROIT APPLICABLES
A teneur de Tarticle 2 du compromis, 1'arbitre doit baser sa decision non settlement sur les traites en vigueur entre les Pays-Bas et le Por- tugal relatifs a la delimitation de leurs possessions dans Tile de Timor, mais aussi sur "les principes generaux du droit international."
II est presque superflu de rappeler ces principes.
Heffter, Volkerrechts, § 94, s'exprime, par exemple, comme suit : "Tous les traites obligent a 1'execution loyale et complete, non pas seulement de ce qui a etc litteralement promis, mais de ce a quoi on s'est engage, et aussi de ce qui est conforme a 1'essence de tout traite quelconque comme a Tintention concordante des contractants (c'est- a-dire a ce qu'on appelle 1'esprit des traites)." Heffter ajoute §95: "L'interpretation des traites doit, sans le doute, se faire conformement a Tintention reciproque constatable, et aussi conformement a ce qui peut etre presume, entre Parties agissant loyalement et raisonnable- ment, avoir ete promis par Tune a Tautre a teneur des termes em- ployes."
Rivier, Principes du droit des gens, II, N°. 157, formule les memes pensees dans les termes suivants: "II faut avant tout constater la
582 ORIGINAL TEXTS
commune intention des parties : id quod actum est ... La bonne foi dominant toute cette matiere, les traites doivent etre interpreted non pas exclusivement selon leur lettre, mais selon leur esprit . . . Les principes de Interpretation des traites sont, en somme, et mutatis mutandis, ceux de 1'interpretation des conventions entre particuliers, principes de bon sens et d'experience formules deja par les Prudents de Rome" (Ulpien, L. 34, au Digeste De R. J. 50.17: "Semper in stipu- lationibus et in ceteris contractibus id sequimur quod actum est").
Entre particuliers, les regies auxquelles Rivier renvoie ont etc formulees dans les principaux codes en termes suffisamment precis pour se passer de commentaires :
Code civil frangais, neerlandais, etc., art. 1156-1157. "On doit dans les Conventions rechercher quelle a ete la commune intention des parties, plutot que de s'arreter au sens litteral des termes. Lorsqu'une clause est susceptible de deux sens, on doit plutot 1'entendre dans celui avec lequel elle peut avoir quelque effet, que dans le sens avec lequel elle n'en pourrait produire aucun." Code civil allemand de 1896, art. 133: "Pour Interpretation d'une declaration de volonte, il faut rechercher la volonte reelle et ne pas Jen tenir au sens litteral de I ex- pression (Bei der Auslegung einer Willenserklarung ist der wirkliche Wille zu erforschen und nicht an dem buchstablichen Sinne des Aus- drucks zu haften" Code civil portugais de 1867, art. 684. Code suisse des obligations de ip/J, art. 18: "Pour apprecier la forme et les clauses d'un contrat, il y a lieu de rechercher la reelle et commune intention des parties, sans s'arreter aux expressions ou denominations inexactes dont elles ont pu se servirt soit par erreur, soit pour deguiser la nature veritable de la Convention."
II est inutile d'insister, le droit des gens comme le droit prive etant sur ce point entierement concordants.
II ne reste plus qu'a faire application aux circonstances de la cause de ces regies et a rechercher quelle a ete la reelle et commune intention des Pays-Bas et du Portugal lors des negociations de 1902 qui ont abouti a la Convention de 1904.
VI
L'lNTENTION DES PARTIES EN SIGNANT LA CONVENTION DE 1904
1. Le traite de Lisbonne du 10 juin 1893 avait eu pour but de chercher a etablir une demarcation plus claire et plus exacte des possessions respectives dans Tile de Timor et de faire disparaitre les "enclaves actuellement existantes" (art. lw). Les "enclaves" figurant sous ce nom au traite anterieur signe a Lisbonne le 20 avril 1859, etaient celles de Maucatar (art. 2, premier alinea) et d'Oi Koussi (art. 2, second alinea, et art. 3, premier alinea).
Lorsqu'en juin 1902, les Delegues des deux Gouvernements se reunirent a La Haye pour chercher a concilier les propositions diver- gentes des commissaires delimitateurs envoyes sur les lieux en 1898- 1899, les delegues furent immediatement d'accord pour attribuer au
THE ISLAND OF TIMOR CASE 583
Portugal 1'enclave neerlandaise de Maucatar au centre de Tile dc Timor, et aux Pays-Bays 1'enclave portugaise de Noimuti, au sud du "royaume" d'Ambeno. A la seance du 26 juin, les Portugais demande- rent, au milieu de Tile, toute la partie du territoire de Fialarang situee a Test de la riviere Mota Bankarna (voir la carte annexe II) ; ils soutinrent en outre que le royaume d'Ambeno confinant a la mer ne pouvait pas plus etre considere comme une enclave que la Belgique, le Portugal ou les Pays-Bas et qu'il ne pouvait done etre question de I'attribuer a la Neerlande ; ils revendiquerent aussi pour 1'Ambeno tout le Hinterland de la cote comprise au nord entre les embouchures de la Noel Meto et de la Noel Boll Bass. Ce Hinterland devait s'etendre au sud jusqu'a la riviere Noel Bilomi et suivre cette riviere de 1'ouest a Test entre le point auquel les commissaires delimitateurs s'etaient, a 1'ouest, arretes en 1899 et, a Test, un lieu denomme Nunkalai sur la carte dessinee alors en commun par les commissaires delimitateurs des deux Pays. — Les limites de ce territoire conteste ayant ete des- signees par les quatre lettres A B C D sur une carte (voir annexe II) presentee par les Delegues neerlandais a la Conference de 1902 la dis- cussion s'engagea sur la ligne occidentale AC preconisee par les Pays- Bas, et la ligne orientale BD reclamee par le Portugal.
Sur la carte ci-annexee sous N°. IV, on a reproduit les preventions respectives, telles qu'elles resultent de la carte signee en commun par tous les commissaires delimitateurs, a Koepang, le 16 fevrier 1899.
Les delegues neerlandais declarerent a la Conference du 26 juin 1902 que les chefs du territoire de Fialarang, au milieu de Tile de Timor, se refusaient absolument a passer sous la souverainete du Portugal, en sorte qu'il n'etait pas ou n'etait plus possible de supprimer cette pointe que le territoire neerlandais fait dans cette region en terri- toire portugais (Voir carte II).
Le premier delegue portugais repliqua qu'il ne fallait pas trop se "laisser guider par des preoccupations d'humanite envers les peuples de Tile de Timor; pour des cas peu graves, ces tribus quittent leur sol natal pour s'etablir ailleurs, et ils ont plusieurs fois quitte le territoire neerlandais pour s'etablir dans le territoire portugais et inversement." Finalmente, le Delegue portugais renonga au territoires des Fialarangs au milieu de Tile de Timor, mais demanda que la f rontiere orientale de TOikoussi fut fixee "selon la proposition des commissaires neer- landais de 1899." (Voir cette proposition dans le proces-verbal de la seance tenue a Koepang le 8 fevrier 1899 dans le premier Memoire por- tugais, p. 24.)
Le lendemain 27 juin, le premier Delegue neerlandais accepta la proposition portugaise, mais, pour eviter tout malentendu, reclama pour son Gouvernement "la certitude absoluc que la limite orientale d'Okussi repr&sentee par la ligne A C sera demarquee autant que pos- sible sur le terrain meme."
II y avait, en effet, malentendu, car le premier delegue portugais repondit que sa proposition de la veille "ne disait pas que la f rontiere a Test d'Oikussi sera formee par la ligne A C, mais au contraire par
584 ORIGINAL TEXTS
la ligne proposee par la commission mixte de 1899 et indiquee par les lettres A B."*
Le premier delegue neerlandais repliqua aussitot que, "si la ligne AC n'est pas acceptee comme frontiere a Test d'Oikoussi (et si les demandes neerlandaises pour la frontiere au centre de Timor ne sont pas agreees) ... les delegues neerlandais retirent leurs consente- ment a la proposition portugaise . . . Jamais ils ne pourraient soumettre a leur Gouvernement un projet ne satisfaisant pas a ces conditions." — Le delegue neerlandais termina en declarant que, si un accord amiable sur ces bases n'intervenait pas, les Pays-Bas recour- raient a 1 'arbitrage prevu par la Convention de 1893 sur la "question des enclaves," donnant ainsi a entendre qu'en cas de refus de la ligne A C pour la frontiere orientale de 1' Ambeno, les Pays-Bas soule- veraient la question beaucoup plus vaste de savoir si la totalite de 1' Ambeno n'etait pas une enclave pouvant revenir logiquement a la Neerlande, puisque 1'Ambeno avait ete a plusieurs reprises designe comme enclave dans le traite de 1859 et puisqu'un des buts de la Con- vention de 1893 etait la "suppression des enclaves."
A la seance du 28 juin, les delegues portugais "ayant examine serieusement la proposition des delegues neerlandais, emise dans la seance du 27 juin, ont resolu d'accepter cette proposition, ainsi que les conditions posees par eux (par les delegues neerlandais) a ce sujet."
II importait de reproduire avec details cette discussion, parce qu'elle jette un jour decisif sur la reelle et commune intention des Parties. — Le Portugal s'est declare satisfait de la situation qui lui etait offerte. Au milieu de Tile de Timor, il gagnait la grande enclave de Maukatar; s'il n'y gagnait pas le pays des Fialarangs, il conservait dans 1'ouest de Tile de Timor 1'Oikussi Ambeno et evitait d'avoir a discuter devant des arbitres la question delicate de savoir si ce royaume etait ou non une "enclave" susceptible d'etre attribute en entier aux Pays-Bas; le Portugal a prefere dans ces circonstances renoncer a la partie orientale contestee de 1'Oikussi Ambeno plutot que de risquer d'y perdre davantage ou meme d'y perdre tout ; il a trouve, en un mot, dans rensemble de la negocia- tion, des compensations jugees par lui suffisantes a Tabandon de la ligne B D et de la ligne intermediaire A B qu'il reclamait. — II a finalement accepte la ligne A C reclamee sine qua non par les Pays- Bas.
II est done certain que cette ligne A C doit, dans Tintention des Parties, etre considered comme une concession faite par le Portugal aux Pays-Bas et ce fait a ete proclame par les Delegues portugais eux-memes dans le Memoire qu*ils ont remis a la seance du 26 juin 1902, au cours des Conferences de La Haye, en ces termes : "ces terri- toires representent une reduction considerable des frontieres du roya- ume d'Ocussi-Ambenou."
2. Qu'est-ce que la ligne AC?
a) Et d'abord ou est le point C ? A Tembouchure de la riviere Noel Meto dans la mer de Timor au nord de Tile. Aucune contestation
THE ISLAND OF TIMOR CASE 585
n'existe a ce sujet, et la Convention de 1904, article 3, chiffre 10, stipule expressement que la frontiere suit le thalweg de la Noel Meto de sa source a son embouchure. — Entre 1899 et 1902-1904, le Portugal pretendait au contraire a tout le territoire a Test de la Noel Meto jusqu'a la riviere Noel Boll Bass; 1'embouchure de la Noel Boll Bass etait le point B, terminus nord de la ligne A B revendiquee par le Portugal (Proposition portugaise, seance du 21 fevrier 1899, 2e Memoire neerlandais annexe II, Proces-verbaux des Conferences de La Haye 1902, page 10, et cartes ci-annexees 1 et II).
Si remplacement du point C n'est pas conteste, il est cependant utile de constater que Tadoption en 1904, comme ligne de demarcation, du cours de la Noel Meto plutot que du cours de la Noel Boll Bass prouve 1'intention generate de ramener la frontiere vers Touest.
b) L'emplacement de la source de la Noel Meto a etc determine et une borne y a etc plante d'un commun accord (proces-verbal du 14 juin 1909, ler Memoire portugais, page 26). Toute cette partie du trace est ainsi definitivement reglee. (Voir carte annexe VI.)
c) Ou est maintenant, a 1'autre extremite de la ligne, le point A convenu a la Conference de 1902? Les Pays-Bas soutiennent que ce point A se trouve la ou se termina la reconnaissance de 1899 et ou les commissaires durent arreter leurs travaux a cause d'hostilite entre les tribus indigenes, c'est-a-dire au point ou les commissaires apres avoir suivi la Nono Balena, la Nono Nive et la Noel Bilomi, ont atteint le confluent de cette derniere riviere avec une autre venant du nord et a laquelle avait ete attribue d'un commun accord le nom d'Oe Sunan.
Toute la ligne de demarcation dans cette partie occidentale et in- f erieure du bassin de la Bilomi a ete sanctioned et definitivement admise comme frontiere par le traite de 1904, article 3, chiffre 9. Lors de la reconnaissance posterieure du 17 juin 1909, il est constate au proces- verbal que ce point n'est pas douteux: "On decide unanimement que de ce point, c'est-a-dire le point ou la commission de 1899 a termine son travail, Tarpentage sera poursuivi." (lcr Memoire neerlandais, annexe III, page 4, ler Memoire portugais, page 27.) La divergence se produit seulement sur ce qu'il y a lieu de faire a partir de ce point, soit vers le nord (demande neerlandaise) soit dans la direction de 1'est (demande portugaise). Or ce point, celui auquel les travaux avaient ete suspendus en 1899, celui a partir duquel des divergences s'etaient produites entre 1899 et 1902, a ete marque sur la carte officielle signee contradictoirement par les commissaires delimitateurs des deux Pays le 16 fevrier 1899 ; c'est ce meme point qui a ete envisage lorsqu'a la Conference de La Haye de 1902, les delegues des deux Etats ont solutionne le differend en se prononc,ant pour une frontiere se dirigeant vers le nord et designee sous le nom de ligne A C. En plagant cette carte du 16 fevrier 1899 (annexe IV ci-jointe) sous la carte annexee a la Convention de 1904 (annexe III ci-jointe), on constate qu'il y a concordance absolue entre elles quant a remplacement du point dont il s'agit.
Le Gouvernement portugais ne conteste d*ailleurs pas tres vive- ment remplacement du point A, car dans son premier Memoire il
586 ORIGINAL TEXTS
s'exprime comme suit, page 10: "On ne pretend pas nier que la ligne ne part du point A, auquel se rapportent les proces-verbaux des nego- ciations, vers le point C. Ce qu'on discute, ce sont ses inflexions subordonnees . . ." et plus loin, page 15: "On ne conteste pas que la frontiere dont il s'agit ne parte du point ou les arpenteurs ont etc empeches d'aller plus loin : ce qu'on nie, c'est qu'on ait eu I'intention de la diriger de Id directement vers le nord."
De ce qui precede, il resulte pour 1'arbitre la certitude que trois points de la ligne A C sont dument etablis, incontestables et meme incontestes : le point C au nord, la source de la Noel Meto au milieu et le point A au sud, a 1'endroit ou les travaux de delimitation ont ete suspendus en 1899. Ces trois points correspondent certainement a Tintention des Parties lorsqu'elles ont negocie le pro jet de convention de 1902 et 1'ont transforme en convention en 1904. Admettre une autre solution quant a remplacement du point A serait d'ailleurs remet- tre en question la f rontiere convenue pour le cours inferieur de la Noel Bilomi par le chiffre 9 de Tarticle 3 du traite de 1904; or ce chiff re 9 n'est pas conteste et n'est pas en cause.
3. II reste a examiner maintenant la partie de la ligne A C comprise entre le point A au sud et la source de la Noel Meto au milieu de cette ligne A C.
Ici encore et toujours, il faut rechercher 1'intention reelle et concor- dante des Parties au moment ou elles ont contracted
En 1902, deux propositions etaient en presence: Celle du Portugal avait ete formulee comme suit dans le proces-verbal de la seance des commissaires delimitateurs tenue a Koepang le 21 fevrier 1899 (annexe II au 2m0 Memoire neerlandais) : "De ce dernier point (le point A), le long de la Noel Bilomi jusqu'a Nunkalai, de la traversant Tasona, Kin Napua, Humusu, jusqu'a la source de la Noel Boll Bass ; puis le long de cette riviere jusqu'a 1'embouchure." Aux Conferences de La Haye de 1902, ce trace (D B) fut abandonne des la seance du 26 juin par la Delegation portugaise et remplace par la demande d'un trace intermediaire et diagonal A B qui prenait pour frontiere au nord-est le cours de la Noel Boll Bass au lieu de la Noel Meto (voir la carte ci-jointe II). Le 28 juin, la delegation portugaise abandonnait cette ligne de retraite A B, reculait vers 1'ouest de la Noel Boll Bass a la Noel Meto (voir carte ci-jointe II), et acceptait la ligne A C reclamee par les Pays-Bas. Cette ligne A C etait aussitot tracee sur une carte qui a ete annexee officiellement au traite de 1904 (voir carte annexe III).
Sur cette carte, la frontiere, partant du point A auquel aboutissait la frontiere incontestee du cours inferieur de la Noel Bilomi remonte dans la direction du nord le cours d'un petit affluent appele d'un com- mun accord Oe Sunan, puis continue vers le nord jusqu'a remplace- ment, alors inconnu, de la source de la Noel Meto. Ce trace de la carte etait defini et commente comme suit dans le traite, art. 3, chiffre 10: "a partir de ce point (A), la limite suit le thalweg de 1'Oe Sunan, traverse autant que possible Nipani et Kelali (Keli), gagne la source de la Noel Meto et suit le thalweg de cette riviere jusqu'a son em- bouchure." Or ce texte, devenu definitif dans le traite de 1904, est la
THE ISLAND OF TIMOR CASE 587
reproduction mot a mot du texte propose par les commissaires neer- landais a cette meme seance de Koepang, 21 fevrier 1899, en opposition aux preventions portugaise d'alors. La simple mise en regard de ces deux cartes et le fait qu'en 1902-1904, la proposition portugaise a ete totalement ecartee et la proposition neerlandaise inseree mot a mot, soffit a etablir avec evidence Tintention des Parties contractantes : lorsqu'elles ont negocie et signe 1'accord de 1904, elles ont adopte le trace neerlandais et ecarte le trace desire par le Portugal sur cette partie des frontieres des deux fitats dans Tile de Timor. Les deux parties ont done eu, dans la pensee de Tarbitre, la volonte reelle et concordante df adopter le trace plus occidental, non seulement sur le versant nord de Tile entre la Noel Boll Bass et la Noel Meto, mais aussi dans le centre de Tile, entre le cours de la Noel Bilomi et la source de la Noel Meto.
II convient maintenant d'entrer dans les details de 1'examen de ce trace le plus occidental :
4. Le Portugal fait observer aujourd'hui que le cours d'eau denomme Oe Sunan sur les cartes officielles de 1899 et de 1904 et dans Fart. 3, chiffre 9, du traite de 1904, n'existe pas ; que ce cours d'eau porte en realite le nom de Kabun chez les membres de la tribu des Tumbabas ou de Leos chez les membres de la tribu des Ambenos, et que le veritable Oe Sunan se trouve a six ou sept kilometres plus a Test. II est vrai, ajoute le Gouvernement portugais, que cet autre Oe Sunan n'est pas un affluent de la riviere Bilomi, qu'il prend sa source a une certaine distance de cette riviere, sur le versant nord du Mont Kinapua, mais cet autre Oe Sunan et le Mont Kinapua sont revendiques par les Ambenos (portugais) comme formant d'ancienne date la frontiere entre eux a Fouest et les Amakonos neerlandais a Test. C'est done bien, dans la pensee du Gouvernement portugais, a cet autre Oe Sunan que les deux Gouvernements ont pense lorsqu'ils ont, a Tart. 3, chiffre 10, du traite de 1904, stipule que la frontiere suivrait le cours de FOe Sunan.
Pour apprecier la portee de cette allegation, il y a lieu de se rappeler que, sur la carte dressee par les commissaires delimitateurs des deux Pays le 16 fevrier 1899 a Koepang (carte annexe IV), la frontiere demandee alors par le Portugal est indiquee par un pointille en suivant a la montce le cours presume de la Noel Bilomi dans la direction de Test a partir du point (A) auquel les dits commissaires avaient du alor arreters leurs travaux, c'est-a-dire a partir du confluent de la Noel Bilomi avec ce qu'on appelait alors d'un commun accord TOe Sunan; on a eu soin, dans cette carte de 1899, de faire suivre le pointille des mots "Noel Bilomi," pour bien indiquer le desir des com- missaires portugais de continuer a suivre, en le remontant, le cours de la riviere.
D'autre part, lors de la signature du traite de 1904, on a, au con- traire, sur la carte annexee au traite, supprime tout ce pointille a Test du point auquel on s'etait arrete en 1899, pour bien montrer qu'il n'y avait plus lieu de continuer a remonter dans la direction de Test le cours alors inexplore de la Noel Bilomi, et qu'au contraire, la frontiere
588 ORIGINAL TEXTS
devait se diriger vers le nord (voir carte transparente annexe III). Cela implique, dans la pensee de 1'arbitre, 1'intention concordante d'attribuer, en amont du point A, les deux rives de la Noel Bilomi aux Pays-Bas.
Un autre fait qui parait a 1'arbitre impliquer la meme intention concordante des Parties lors de la signature de la Convention de 1904, est que, dans la description de la frontiere proposee en 1899 par les commissaires portugais, ils ont suggere de I'ouest a Vest le trace suivant: "De ce dernier point (le confluent de la Noel Bilomi avec 1'affluent nomme alors l'Oe Sunan) le long de la Noel Bilomi jusqu'a NunkalcAi de la traversant Tasona, Kinapua . . ."; d'apres cette description portugaise, Nunkalai se trouve done a Test de la riviere d'Oe Sunan et a 1'ouest de Kinapua. Or 1'autre riviere Oe-Sunan, actuellement revendiquee comme frontiere par le Portugal, se trouve situee a plusieurs kilometres d Vest et non a 1'ouest de Nunkalai, d'ou resulte 1'impossibilite que cette riviere ait etc visee par les delegues portugais dans leurs propositions d'alors.
Ce qui confirme encore cette impression de 1'arbitre, c'est le fait que le nouvel Oe Sunan, celui qui, six kilometres plus a 1'est, a sa source sur le versant septentrional du mont Kinapua, n'est pas un affluent de la Noel Bilomi.
Enfin, cet autre Oe Sunan ne se dirige pas "vers Nipani et Kelali (Keli)" comme le present le traite de 1904, mais se confond tres vite avec d'autres rivieres se dirigeant vers Test pour aboutir fmalement dans des regions incontestablement neerlandaises.
Tout cet ensemble de circonstances concordantes amene 1'arbitre a la conviction qu'il n'y a pas lieu de s'arreter a 1'erreur de nom commise par les commissaires delimitateurs en 1899 et par les negociateurs des actes internationaux de 1902 et 1904 lorsqu'ils ont donne au Kabun ou Leos le nom d'Oe Sunan, et qu'il y a lieu au contraire d'admettre que c'est bien le Kabun ou Leos que les Parties ont eu 1'intention de viser comme devant servir de frontiere a partir du point A dans la direction du nord. Cette erreur commune aux commissaires des deux Pays s'explique d'ailleurs lorsqu'on constat que la plupart des cours d'eau de la region portent plusieurs noms ou portent le nom de la region qu'il traversent et qu'une region voisine du Kabun ou Leos porte le nom de Sunan dont la consonnance se rapproche d'Oe Sunan.
Admettre une autre solution, accepter un trace remontant le cours de la Noel Bilomi jusqu'au mont Kinapua, puis passant dans le bassin d'un autre Oe Sunan a^ue n'est pas un affluent de la Bilomi et qui ne se dirige pas vers Nipani et Kelali, serait contraire a tout 1'esprit de la negotiation de 1902-1904, et inconciliable avec la carte annexee a la convention de 1904. Le Portugal ne saurait equitablement revendi- quer apres coup, entre la Noel Bilomi et la source de la Noel Meto et a propos d'un bornage, presque exactement le territoire auquel il a expressement renonce en 1902-1904 contre des compensations jugees par lui suffisantes ou parce qu'il a voulu eviter alors de la part des Pays- Bas un appel a 1'arbitrage ou des revendications plus etendues dans la region d'Okussi (voir cartes annexes V et VI).
THE ISLAND OF TIMOR CASE 589
De ce qui precede, se degage, en d'autres termes, la conviction que la volonte des Parties contractantes doit etre interpretee en ce sens qu'a partir du point A situe sur la riviere Bilomi, la f rontiere suit, dans la direction du nord, le thalweg de la riviere Kabun ou Leos jusqu'a la source de ce dernier cours d'eau denomme a tort Oe Sunan en 1899, 1902 et 1904.
Le raisonnement expose ci-dessus sous chiffre 4 serait superflu si, comme 1'affirme le Gouvernement des Pays-Bas (Second memoire, chiffre VII, page 6) les dernieres reconnaissance faites sur place ont etabli que ce nouvel Oe Sunan n'existe pas et que le cours d'eau auquel des portugais donnent ce nom s'appelle en realite Noel Polan ou Poeamesse.
5. II ne reste plus a rechercher 1'intention des Parties que pour la section comprise entre la source de la riviere Kabun ou Leos (de- nommee a tort Oe Sunan de 1899 a 1904) et la source de la Noel Meto.
La Convention de 1904 s'exprime comme suit: "Le Thalweg de FOe Sunan [reconnu sous N° 4 ci-devant devoir etre denomme Kabun ou Leos] traverse autant que possible Nipani et Kelali (Keli), [et] gagne la source de la Noel Meto. . . ."
Les commissaires delimitateurs neerlandais et leur Gouvernement proposent de relier les sources des rivieres Kabun et Noel Meto en suivant presque cxactement la ligne de partage des eaux, c'est-a-dire une suite de sommets dont les principaux porteraient, du sud au nord, les noms de Netton, Adjausene, Niseu ou Nisene, Wanat ou Vanate, Fatu Nipani ou Fatoe Nipani, Fatu Kabi (Fatoe Kabi) et Kelali (Keli).
Cette proposition est contestee par le Gouvernement portugais parce qu'elle serait contraire aux intentions des Parties dont le but aurait ete, lors de la conclusion des traites entre les deux Gouvernements, de ne pas separer les fitats indigenes ; or cette ligne detacherait de I'Ambeno por- tugais toute la partie orientale; le Gouvernement portugais invoque, dans son premier et surtout dans les annexes de son second Memoire, les depositions de nombreux chefs indigenes pour etablir, en substance, que tout Tespace qui serait attribue aux Pays-Bas fait partie de FAmbeno et appartient aux Ambenos. II invoque en outre une carte privee editee a Batavia, sur laquelle les Ambenos sont indiques comme occupant le territoire revendique par les Pays-Bas. Le Gouvernement portugais est d'avis que TAmbenu-Oikussi a incontestablement ete attribue au Portugal par le traite de 1859 et que la tribu des Ambenos ne saurait etre partagee entre deux souverainetes.
Une fois de plus, Tarbitre doit chercher a reconstituer la volonte des Parties. Or d'apres le texte du traite de 1859, le Portugal a obtenu seulement la "partie" de Tfitat d'Ambeno qtii "a arbor e le pavilion portugais" ; il n'y aurait done rien d'anormal a ce que certaines parties de TAmbeno eussent ete considerees, des 1859, comme restant sous la souverainete des Pays-Bas. En outre, la carte privee editee a Batavia ne saurait prevaloir centre les deux cartes officielles signes par les commissaires ou delegues des deux Etats en 1899 et en 1904 et ces deux cartes officielles (annexes III et IV) ne font pas figurer le nom
590 ORIGINAL TEXTS
d'Ambeno dans le territoire conteste; Tune et 1'autre inscrivent ce nom a 1'ouest et en dehors du territoire conteste. II resulte, d'ailleurs, dcs documents fournis que, des 1899, les commissaires neerlandais produisaient des declarations des chefs indigenes tumbabas et amakonos assurant que ce territoire leur appartenait et ne f aisait pas parties de 1' Ambeno (annexe III au second Memoire neerlandais, declaration faite a la seance tenue a Kcepang le 21 fevrier 1899). On se trouve done en presence d'affirmations contradictoires des indigenes. Ceux- ci se battaient en 1899 depuis plus de vingt ans (premier Memoire portugais, p. 22), lors de Tarrivee dans cette region des commissaires- delimitateurs, et le Gouvermement portugais rcconnait (dans son premier Memoire, p. 9) comme "certain que les peuples a 1'Est de TOikussi Ambeno se disputent depuis longtemps les territoires con- tigus et que ces peuples se trouvent de telle sorte entremeles, qu'il est difficile de distinguer ce qui leur appartient en realite." Voir aussi dans le second Memoire portugais, p. 10, la deposition du chef ambeno Bene Necat: "La partie orientale d'Oikussi et d'Ambeno a etc habitee par le peuple Tumbaba qui en a etc chasse il y a trois generation . . . par les Ambenos. . . . Depuis lors cette region est deserte, bien qu'elle soit parcourue par les Tumbabas et par les Ambenos."
L'intention des Parties lors de la negociation de 1902 se trouve documented par le proces-verbal de la seance du 26 juin (proces- verbaux, page 7) au cours de laquelle le premier Delegue portugais a, lui-meme, conseille "de ne pas trop se laisser guider en cette matiere par les preoccupations d'humanite envers les peuples dans Tile de Timor; pour des causes peu graves, ces tribus quittent leur sol natal pour s'etablir ailleurs et ont plusieurs fois quitte le territoire neerlan- dais pour s'etablir dans le territoire portugais et inversement." Le lendemain, proces-verbaux, page 11, le premier delegue neerlandais f aisait observer que son Gouvernement faisait "une grande concession" en ne reclamant pas la totalite de 1' Ambeno, "attendu qu'a son avis la convention de 1893 impliquait la disparition de 1'enclave d'Oikussi" ; il declarait que, si les deux Gouvernements ne pouvaient en venir a un arrangement sur la base de la ligne A C proposee par les Pays-Bas, ceux-ci se verraient engages a recourir a 1 'arbitrage pour etablir si 1' Ambeno n'etait pas une "enclave" devant leur etre attribuee toute entiere, et c'est alors que, le 28 juin, la delegation portugaise accepta sans restriction ni reserve la ligne A C telle qu'elle etait reclamee par la delegation neerlandaise.
De tout cet ensemble de faits resulte pour 1'arbitre la conviction qu'en 1902-1904, 1'accord s'est fait sans tenir compte du risque de detacher telle ou telle parcelle reclamee par les Ambenos, les Tumbabas ou les Amakonos et en constatant expressement qu'on ne se preoccu- perait pas des preventions, d'ailleurs contradictoires, des indigenes. Des proces-verbaux de 1902 resulte, en d'autres termes, pour 1'arbitre, le conviction que le Portugal a accepte la ligne A C telle qu'elle etait reclamee par les Pays-Bas, precisement parce que le Portugal preferait abandonner des preventions d'ordre secondaire a Test aim de conserver le gros morceau, c'est-a-dire afin de conserver ce que le traite de 1859
THE ISLAND OF TIMOR CASE 591
avait appele P'enclave" d'Ambeno-Okussi. C'est avec raison aussi, dans la pensee de Tarbitre, que le Gouvernement neerlandais soutient dans son second memoire, page 2, que rien dans le traite de 1859 ne s'opposait a la division du royaume d'Ambeno et a j outer "Meme si le traite de 1859 n'avait pas sanctionne une telle division . . . le Gouvernement portugais ne pourrait legitimement s'opposer a present a une pareille division. De telles objections viendraient trop tard et auraient du etre elevees ceuant la conclusion du traite de 1904."
L'arbitre fait observer en outre que, sur les deux cartes officielles de 1899 et de 1904 (annexes III et IV), le Nipani est indique comme se trouvant tres pres et legerement a Test de la ligne A C, a peu de distance de la source de FOe Sunan (aujourd'hui reconnu devoir etre appele Kabun ou Leos) ; si Ton adoptait le trace actuellement reclame par le Portugal, ce trace1 passerait fort loin a Test et au nord du Nipani et par consequent "traverserait" encore moins ce territoire que le trace propose par les Pays-Bas. II est vrai que le Gouverne- ment portugais place le Nipani (voir la carte annexee sous chiffre VI au premier Memoire neerlandais et mot Nipani inscrit en bleu sur la carte ci-jointe annexe IV) au nord-est du territoire conteste, mais cette carte unilaterale portugaise ne saurait etre opposee aux deux cartes officielles de 1899 et de 1904 (annexes III et IV), signees des delegues des deux fitats; d'ailleurs, meme sur cette carte exclusivement portu- gaise, la frontiere desiree par le Portugal semble tracee au nord de Nipani et ne pa rait pas "traverser" ce territoire.
6. Le Gouvernement de la Republique portugaise objecte enfin a ce trace d'une ligne a peu pres directe du sud au nord entre la source de la riviere Kabun ou Leos et la source de la Noel Meto, que c'est une frontiere terrestre, devant necessiter la pose de bornes tandis que la ligne orientale suggeree par le Portugal est essentiellement formee par une succession de rivieres, ce qui est preferable pour eviter des conflits entre les indigenes. Dans la pensee de Tarbitre, cette objection ne repose sur aucune indication resultant des negotiations de 1899 a 1904. Sur la frontiere meridionale de TOkussi-Ambeno, la frontiere adoptee en 1904 est, sur un assez grand nombre de points, independante des cours d'eau et a du ou pourra devoir etre marquee sur le terrain par des bornes. Le trace suggere par le Portugal comporterait, lui aussi, des parties terrestres et la plantation de bornes, notamment a Tangle sud-est (aux environs du mont Kinapua, entre le cours de la riviere Bilomi et le cours de la riviere denommee Oe Sunan par les Portugais), et a Tangle nord-ouest (entre la source de la riviere appelee par les Portugais Ni-Fullan et la source de la Noel Meto) .
Le trace suggere par les commissaires neerlandais parait a Tarbitre constituer une frontiere suffisamment naturelle pour etre facilement delimitable sur le terrain. II se compose d'une serie continue de sommets assez eleves, portant, du sud au nord, les noms de Netton, Loamitoe, Adjausene, Niseu, Wanat, Fatoe-Nipani, Kelali ou Keli, dont Taltitude est indiquee entre 500 et 1,000 metres. Cette chaine sert de ligne de partage des eaux et les rivieres a Test de cette ligne coulent vers Torient. II ne semble done pas qu'il soit techniquement difficile
592 ORIGINAL TEXTS
de proceder a la delimitation le long de cette chaine de hauteurs, dont la direction generate repond entierement a la ligne theorique A C adoptee d'un commun accord en 1904.
VII CONCLUSIONS
Les considerations defait et de droit qui precedent ont amene 1'arbitre aux conclusions suivantes:
1. Le traite de 1859 avait attribue au Portugal, dans la partie octi- dentale de Tile de Timor, l'"enclave" d'Oikussi-Ambenu, et les Pays- Bas ont cede alors au Portugal "cette partie d' Ambenu qui, depuis plusieurs annees, a arbore le pavilion portugais."
2. La Convention de 1893 a eu pour but "d'etablir d'une fagon plus claire et plus exacte la demarcation" des possessions respectives a Timor et d'y "faire disparaitre les enclaves actuellement existantes."
3. La Convention de 1904 a regularise la f rontiere au centre de Tile en attribuant au Portugal 1'enclave neerlandaise de Maukatar et d'autres territoires contestes, et aux Pays-Bas au sud-ouest de Tile, 1'enclave portugaise de Noemuti. D'autre part, les Pays-Bas ont renonce, au cours des negotiations de 1902, a soulever la grosse ques- tion de savoir si TOikussi Ambenu n'etait pas, comme Tindiquait le traite de 1859, une "enclave" devant leur revenir. Cet accord a eu lieu a la condition, expressement acceptee par le Portugal, d'adopter, pour la f rontiere orientale de ce royaume d'Oikussi (Ambenu), la ligne A C reclamee au cours des negotiations de 1902 par les Pays- Bas. Cette ligne A C a ete consacree par le traite de 1904 (voir Cartes annexes I et II).
4. Le point C de cette ligne n'est pas conteste; il est situe sur la cote nord de Tile de Timor, a Tembouchure dans la mer de la Noel Meto, dont le cours a ete substitue en 1902-1904 au cours de la riviere Noel Boll Bass, situee plus a Test et qu'avait reclame le Portugal.
Le cours de la Noel Meto, dont le thalweg doit servir de frontiere jusqu'a sa source, a ete reconnu, n'est pas conteste, et une borne a etc plantee contradictoirement a sa source.
5. Le point A, a 1'extremite meridional e de la ligne con venue en 1904, est le point auquel les travaux de delimitation ont ete interrom- pus en 1899. Cela n'est pas serieusement conteste par le Portugal, qui, a deux reprises dans son premier Memoire, se sert des mots: "On ne peut pas nier que la ligne part de point A, auquel se rapportent les proces-verbaux des negotiations (p. 10) . . . On ne conteste pas que la frontiere dont il s'agit ne parte du point ou les arpenteurs de 1899 ont ete empeches d'aller plus loin" (p. 15). Contester remplacement du point A serait remettre en question la delimitation du cours in- ferieur de la Noel Bilomi en aval de ce point; or cette partie de la frontiere a ete reglee definitivement par le chiffre 9 de 1'article 3 du traite de 1904 ; le point A a ete d'ailleurs repere contradictoirement sur les cartes officielles de 1899 et de 1904 (voir annexes III et IV).
THE ISLAND OF TIMOR CASE 593
6. Les negociateurs de 1902-1904 se sont trouves a partir de ce point A en presence de deux propositions. L'une, la proposition por- tugaise, consistait a faire remonter a la f rontiere la riviere Noel Bilpmi dans la direction de Test jusqu'a Nunkalai, puis a diriger la f rontiere vers le nord, par Humusu, afin d'atteindre la source de la riviere la Noel Boll Bass se jetant dans la mer a 1'orient de la Noel Meto (ligne B D). L'autre, la proposition neerlandaise, dite ligne A C, consistait a se diriger vers le nord des le point A jusqu'aux sources de la Noel Meto. Les negociateurs ont nettement, categoriquement, repudie le premier trace portugais pour accepter la seconde ligne A C reclamee par les Pays-Bas; ils ont, sur la carte annexee au traite de 1904, attribue aux Pays-Bas les deux rives de la Noel Meto en amont du point A, auquel les delimitateurs avaient arrete leurs travaux en 1899 (voir les cartes III et IV).
7. La description dans le traite de 1904, article 3, chiffre 10, de cette ligne A C, la carte contradictoirement dessinee en 1899 et sur laquelle les negociateurs de 1902 ont delibere, comme enfin la carte officielle- ment annexee au traite de 1904, mentionnent au point A, comme devant former limite dans la direction du nord, un affluent auquel toutes les Parties ont donne de 1899 a 1909 le nom d'Oe Sunan. Les Parties sont aujourd'hui d'accord que cet affluent porte en realite le nom de Kabun ou de Leos. Une autre riviere, decouverte posterieure- ment a environ six kilometres plus a Test, porte, d'apres les Portugais, le nom d'Oe Sunan et prend sa source au nord du Kinapua, montagne situee tres pres de la rive nord de la Bilomi. L'existence de cette riviere Oe Sunan est contestee par les Pays-Bas dans leur second Memoire a la suite de deux reconnaissances recentes; ce pretendu Oe Sunan s'appellerait en realite Poeamesse ou Noel Polan.
II est, dans la pensee de 1'arbitre, impossible que cette autre riviere Oe Sunan, si elle existe, ait etc celle que les negociateurs de 1899 et de 1902-1904 avaient en vue, car
a) Elle n'est pas un affluent de la Noel Bilomi ;
b) La f rontiere proposee a cette epoque par le Portugal et ecartee d'un commun accord en 1902-1904 devait, en partant du point A et en se dirigeant vers I* est, passer par Nunkalai puis par Kinapua ; or Nun- kalai est situe plusieurs kilometres a Youest du mont Kinapua et a Vouest de la source de cette nouvelle riviere denommee Oe Sunan par les Portugais;
r) Les deux rives de la Noel Bilomi en amont et a Test du point A ayant etc attribuees aux Pays-Bas en 1904, Taffluent devant servir de frontiere dans la direction idu nord ne peut etre recherche en amont et a Test du point A.
Les principes generaux sur Tinterpretation des Conventions exigent qu'on tienne compte "de la reelle et commune intention des Parties sans s'arreter aux expressions ou denominations inexactes dont elles ont pu se servir par erreur." Les Parties ont, il est vrai, commis une erreur en donnant le nom d'Oe Sunan a I'afnuent venant du nord au point A, mais c'est cet affluent seul (denomme alors par erreur Oe Sunan) qui £tait necessairement, dans la pensee concordante des Par-
594 ORIGINAL TEXTS
ties, le point auquel la f rontiere devait quitter la Noel Bilomi pour se diriger vers le nord, — et non une autre riviere a laquelle les Portugais donnent ce nom d'Oe Sunan et qui serait situee six kilometres plus a 1'est. En d'autres termes, c'est bien le thalweg de la riviere aujourd'hui denomme Kabun ou Leos qui doit servir de frontiere a partir du point A dans la direction du nord.
8. A partir de la source de cette riviere Kabun ou Leos (denommee a tort Oe Sunan de 1899 a 1909) au sud, la frontiere doit, a teneur de Tarticle 3, chiffre 10, du traite de 1904, "traverser autant que possible Nipani et Kelali (Keli)" pour gagner la source de la Noel Meto, au nord.
La delimitation proposee par le Portugal contournerait entierement la region designee sur la carte officielle de 1904 sous le nom de Nipani et situee, d'apres cette carte, pres de la source du Kabun ou Leos ; la frontiere s'eloignerait de Nipani de plusieurs kilometres dans la direction de Test. Meme si, comme le fait une carte portugaise qui n'a pas de caractere contradictoirement reconnu, on donnait le nom de Nipani a une region situee beaucoup plus au nord, a Torient des sources de la Noel Meto, la frontiere reclamee par le Portugal ne traverserait pas davantage Nipani, mais le contournerait par le nord.
Le traite de 1904 prescrit de traverser "autant que possible" le Nipani. Le trace suggere par le Pays-Bas longe la partie occidentale du Nipani et s'en trouve plus pres que le trace propose par le Portugal.
9. Le Portugal objecte que la ligne directe nord-sud entre les sources de la riviere Kabun et de la riviere Noel Meto morcellerait le territoire des Ambenos en Fattribuant partie aux Pays-Bas et partie au Portu- gal ; ce morcellement serait contraire au traite de 1859.
Dans la pensee de Parbitre, cette objection n'est pas fondee en ce sens que, deja en 1859, une "partie" de TAmbeno etait incontestable- ment placee sous la souverainete des Pays-Bas. En outre, au cours des negociations de 1899 a 1904, il a etc produit des declarations con- tradictoires des indigenes, les Amakonos et les Tumbabas neerlandais revendiquant le territoire conteste et les Ambenos portugais le revendi- quant de leur cote. Ce pretendu morcellement n'est done pas demontre. De plus, il a etc entendu aux Conferences de 1902, sur les observations du premier delegue portugais lui-meme, qu'il n'y avait pas lieu de se preoccuper outre mesure des preventions de tribus qui se deplacent frequemment et passent successivement du territoire de Tun des fitats dans celui de Tautre. L'objection que les territoires d'une meme tribu ne doivent pas etre morceles, ne saurait ainsi etre retenue par Tarbitre, car elle aurait du etre presentee au cours des negociations de 1902- 1904 ; actuellement, elle est tardive, parce que le traite de 1904, le seul dont Tarbitre ait a interpreter Tarticle 3, chiffre 10, ne fait aucune mention d'une volonte des Parties de ne jamais separer des popula- tions indigenes; ce traite a au contraire trace" la ligne de demarcation a la suite de Conferences au cours desquelles il a ete entendu que les considerations de ce genre ne doivent pas etre preponderantes.
10. La lingne de faite proposee par le Gouvernement neerlandais entre la source de la riviere Kabun (Leos), au sud, et la source
THE ISLAND OF TIMOR CASE 595
de la Noel Meto, au nord, est suffisamment naturelle pour pouvoir etre tracee sur le terrain sans grandes difficultes pratiques. Elle offre 1'avantage que les cours d'eau descendent uniforme de cette ligne de faite vers des territoires tous places sous la souverainete neerlandaise. Le trace suggere par le Gouvernement portugais attribuerait au con- traire a des souverainetes differentes la partie superieure et la partie inferieure de ces divers cours d'eau.
11. D'une facpn generate, la demande du Portugal reproduit, en fait, completement, pour tout le terntoire entre la Noel Bilomi au sud et le source de la Noel Meto au nord, la ligne que cet fitat revendi- quait en 1902 et qu'il a abandonnee tant a la fin de la Conference de 1902 que par le traite de 1904. Si la demande portugaise actuelle etait fondee, on ne s'expliquerait pas pourquoi les Pays-Bas ont fait, en 1902, du rejet de cette demande portugaise une condition sine qua non. Les Conventions entre fitats, comme celles entre particuliers, doivent etre interpreters "plutot dans le sens avec lequel elles peuvent avoir quelque effet que dans le sens avec lequel elles n'en pourraient produire aucun." La menace neerlandaise de rompre les negociations en 1902 n'aurait pas de sens si Fintention avait etc alors d'attribuer au Portugal precisement le territoire reclame par les Pays-Bas comme une condition de Taccord.
12. Enfin, si Ton se place au point de vue de Fequite, qu'il importe de ne pas perdre devue dans les relations internationales, la ligne de faite suggeree par les Pays-Bas n'est pas contraire a Tequite, en ce sens que le Portugal recevra plus de territoires qu'il n'en devait esperer selon la ligne theorique A C, a laquelle il a consenti en 1904, avant qu'on put aller reconnaitre le terrain. La ligne A C est toute entiere tracee a rinterieur du territoire qui reviendra au Portugal; la Repu- blique portugaise sera de la sorte mieux partagee, en fait, qu'elle ne pouvait s'y attendre (voir carte annexee VII). Si, au contraire, le trace oriental suggere par le Gouvernement portugais etait adopte, les Pays-Bas pourraient avec raison pretendre qu'on les prive de presque tout le territoire qui leur avait ete attribue theoriquement en 1904 en contre-partie de Tabandon de Tenclave de Maukatar au centre de Tile de Timor et en contre-partie de 1'abandon des revendications neerlandaises sur Tensemble de l'"enclave" d'Ambeno.
En consequence,
L^ARBITRE
vu les deux traites signes a Lisbonne les 20 avril 1859 et 10 juin 1893 et le traite signe a La Have le 1" octobre 1904 entre les Pays- Bas et le Portugal pour la delimitation de leurs possessions respectives dans Tile de Timor;
vu le compromis d'arbitrage signe a La Haye le 3 avril 1913, et notamment Tarticle 2 ainsi congu : "L'arbitre, statuant sur les donnees fournies par les Parties, d£cidera en se basant sur les traites et les principes generaux du droit international, comment doit etre fixee conformement a Tarticle 3, 10° de la Convention conclue a La Haye l*p octobre 1904, concernant la delimitation des possessions neerlan-
5% ORIGINAL TEXTS
daises et portugaises dans Tile de Timor, la limite a partir de la Noel Bilomi jusqu'a la source de la Noel Meto" ;
vu les Notes diplomatiques faisant part au soussigne de sa desi- gnation comme arbitre par application de rarticle ler du compromis;
vu les premiers et seconds Memoires remis en temps utile par chacune des hautes Parties contestantes, ainsi que les cartes et docu- ments annexes aux dits memoires;
vu les considerations de fait et de droit formulees ci-dessus sous chiffres I a VII ;
vu la Convention signee a La Haye le 18 octobre 1907 pour le reglement pacifique des conflits internationaux ;
ARRETE
L'article 3, chiffre 10, de la Convention conclue a La Haye le ler octobre 1904 concernant la delimitation des possessions neerlandaises et portugaises dans Tile de Timor doit etre interprete conformement aux conclusions du Gouvernement royal des Pays-Bas, pour la limite a partir de la Noel Bilomi jusqu'a la source de la Noel Meto ; en con- sequence, il sera precede a Parpentage de cette partie de la frontiere sur la base de la carte au 1/50,000 annexee sous N°. IV au premier Memoire remis a 1'arbitre par le Gouvernement neerlandais. Une reproduction de cette carte signee par Tarbitre est jointe comme annexe VII a la presente sentence dont elle fera partie integrante.
Les f rais, fixes a f r. 2,000, ont ete preleves sur la somme de 4,000 f r. consignee entre les mains de Tarbitre en execution de Tart. 8 du com- promis du 3 avril 1913 ; la difference, soit fr. 2,000, sera restituee aux deux parties par egales portions et contre quittance, au moment de la notification de la sentence.
Fait en trois exemplaires dont Tun sera remis contre recepisse par M. le secretaire general du Bureau international de la Cour perma- nente d'arbitrage a La Haye, a Son Excellence le Ministre des Affaires Etrangeres des Pays-Bas pour valoir notification au Gouvernement royal neerlandais, et dont le second sera remis le meme jour et dans les memes formes a Son Excellence 1'Envoye extraordinaire et Ministre Plenipotentiaire de la Republique portugaise pres S. M. la Reine des Pays-Bas pour valoir notification au Gouvernement de la Republique portugaise. Le troisieme exemplaire sera depose aux archives du Bureau international de la Cour permanente d'arbitrage.
Paris, le 25 juin 1914.
LARDY
Agreement for Arbitration, April 3,
Sa Majeste la Reine des Pays-Bas et le President de la Republique Portugaise considerant que Texecution de la Convention conclue entre les Pays-Bas et le Portugal a La Haye le ler octobre 1904, concernant
1Official report, p. 41, annex D.
THE ISLAND OF TIMOR CASE 597
la delimitation des possessions neerlandaises et portugaises dans Tile de Timor, a fait naitre un differend au sujet de Parpentage de la partie de la limite visee a Particle 3, 10°. de cette Convention ;
desirant mettre fin a Pamiable a ce differend;
vus Particle 14 de la dite Convention et Particle 38 de la Conven- tion pour le reglement pacifique des conflits internationaux conclue a La Haye le 18 octobre 1907;
ont nomme pour Leurs plenipotentiaires, savoir:
lesquels, dument autorises a cet effet, sont convenus des articles suivants :
ARTICLE ler
Le Gouvernement de Sa Majeste la Reine des Pays-Bas et le Gouvernement de la Republique Portugaise conviennent de soumettre le differend susmentionne a un arbitre unique a choisir parmi les mem- bres de la Cour permanente d'Arbitrage.
Si les deux Gouvernements ne pouvaient tomber d'accord sur le choix de tel arbitre, ils adresseront au President de la Confederation Suisse la requete de la designer.
ART. 2
L'arbitre statuant sur les donnees fournies par les Parties, decidera en se basant sur les traites et les principes generaux du droit interna- tional, comment doit etre fixee conformement a Particle 3, 10°. de la Convention conclue a La Haye le ler octobre 1904, concernant la delimitation des possessions neerlandaises et portugaises dans Tile de Timor, la limite a partir de la Noel Bilomi jusqu'a la source de la Noel Meto.
ART. 3
Chacune des Parties remettra par Pintermediaire du Bureau Inter- national de la Cour permanente d'Arbitrage a Parbitre dans un delai de 3 mois apres Pechange des ratifications de la presente Convention un memoire contenant 1'expose de ses droits et les documents a Tappui et en fera parvenir immediatement une copie certifiee con forme a 1'autre Partie.
A 1'expiration du delai susnomme chacune des Parties aura un nouveau delai de 3 mois pour remettre par rintermediaire susindique a Tarbitre, si elle le juge utile, un second memoire dont elle fera parvenir une copie certifiee con forme a 1'autre Partie.
L'arbitre est autorise a accorder a chacune des Parties qui le de- manderait une prorogation de 2 mois par rapport aux delais mentionnes dans cet article. II donnera connaissance de chaque prorogation a la Partie adverse.1
1TJne prorogation de deux mois a etc accordee aux Parties par Tarbitre pour la remise de leurs seconds memoires.
598 ORIGINAL TEXTS
ART. 4
Apres 1'echange de ces memoires aucune communication ecrite ou verbale ne sera faite a 1'arbitre, a moins que celui-ci ne s'adresse aux Parties pour obtenir d'elles ou de Tune d'elles des renseignements ulterieurs par ecrit.
La Partie qui donnera ces renseignements en fera parvenir imme- diatement une copie certifiee conforme a Tautre Partie et celle-ci pourra, si bon lui semble, dans un delai de 2 mois apres la reception de cette copie, communiquer par ecrit a 1'arbitre les observations aux- quelles ils lui donneront lieu. Ces observations seront egalement com- muniquees immediatement en copie certifiee conforme a la Partie adverse.
ART. 5 L'arbitre siegera a un endroit a designer par lui.
ART. 6
L'arbitre fera usage de la langue franchise tante dans la sentence que dans les communications qu'il aura a adresser aux Parties dans le cours de la procedure. Les memoires et autres communications emanant des Parties seront dresses dans cette langue.
ART. 7
L'arbitre decidera de toutes les questions qui pourraient surgir relativement a la procedure dans le cours du Htige.
ART. 8
Aussitot apres la ratification de la presente Convention chacune des Parties deposera entre les mains de Tarbitre une somme de deux mille francs a tit re d'avance pour les f rais de la procedure.
ART. 9
La sentence sera communiquee par ecrit par Tarbitre aux Parties.
Elle sera motivee.
L'arbitre fixera dans sa sentence le montant des frais de la pro- cedure. Chaque Partie supportera ses propres frais et une part egale des dits frais de procedure.
ART. 10
Les Parties s'engagent a accepter comme Jugement en dernier ressort la decision prononcee par Tarbitre dans les limites de la presente Con- vention et a 1'executer sans aucune reserve.
Tous differends concernant Texecution seront soumis a Tarbitre.
THE ISLAND OF TIMOR CASE 599
ART. 11
La Presente Convention sera ratifiee et entrera en vigueur imme- diatement apres Fechange des ratifications qui aura lieu a La Haye aussitot que possible.
En foi de quoi, les plenipotentiaires respectif s ont signe la presente Convention qu'ils ont revetue de leurs cachets. Fait en double a La Haye, le 3 avril 1913.
(L.-S.) (Signe) R. DE MAREES VAN SWINDEREN
(L.-S.) " ANTONIO MARIA BARTHOLOMEU FERREIRA
Agreement of April 20, 1859, between the Netherlands and Portugal relative to Boundary Possessions1
Sa Majeste le Roi des Pays-Bas et Sa Majeste le Roi de Portugal et des Algarves, ayant juge utile de mettre fin aux incertitudes exis- tantes rclativement aux limites des possessions Neerlandaises et Portu- gaises dans 1'Archipel de Timor et Solor, et voulant prevenir a jamais tout malentendu que pourraient provoquer des limites mal defmies et des enclaves trop multipliers, ont muni, afin de s'entendre a cet egard, de leurs pleins-pouvoirs, savoir:
Lesquels, apres s'etre communiques les dits pleins-pouvoirs, trouves en bonne et due forme, sont convenus de conclure un traite de demarca- tion et d'echange, contenant les articles suivants:
ARTICLE ler
Les limites entre les possessions Neerlandaises et Portugaises sur Tile de Timor seront au nord, les frontieres qui separent Cova de Juanilo ; et au sud, celles qui separent Sua de Lakecune.
Entre ces deux points, les limites des deux possessions sont les memes que celles des Etats limitrophes Neerlandais et Portugais.
Ces Etats sont les suivants :
Etats limitrophes sous la domino- Etats limitrophes sous la domina- tion de la Neerlandc: tion du Portugal:
Juanilo, Cova,
Silawang, Balibo,
Fialarang (Fialara), Lamakitu,
Lamaksanulu, Tafakaij ou Takaij
Lamakanee, Tatumea,
Naitimu (Nartimu), Lanken,
Manden, Dacolo,
Dirma, Tamiru Eulalang (Eula- Lakecune. leng), Suai.
iQfficial report, p. 31.
600 ORIGINAL TEXTS
ART. 2
Le Neerlande reconnait la souverainete du Portugal sur tous les Etats qui se trouvent a Test des limites ainsi circonscrites, a 1'exception d 1'Etat Neerlandais de Maucatar ou Caluninene (Coluninene), qui se trouve enclave dans les Etats Portugais de Lamakitu, de Tanterine, de Follafaix (Follefait) et du Suai.
Le Portugal reconnait la souverainete de la Neerlande sur tous les Etats qui se trouvent a 1'ouest de ces limites, a 1'exception de 1'enclave d'Oikoussi, qui demeure Portugaise.
ART. 3
L'enclave d'Oikoussi comprend 1'Etat d'Ambenu partout ou y est arbore le pavilion Portugais, 1'Etat d'Oikoussi proprement dit, et celui de Noimuti.
Les limites de cette enclave sont les frontieres entre Ambenu et Amfoang a 1'ouest, d'Insana et Reboki (Beboki), y compris Cicale a Test, et Sonnebait, y compris Amakono et Tunebaba (Timebaba) au sud.
ART. 4
Sur Tile de Timor, le Portugal reconnait done la souverainete de la Neerlande sur les Etats d'Amarassi, de Bibico (Traijnico, Waij- niko), de Buboque (Reboki), de Derima (Dirma), de Fialara (Fialarang), de Lamakanee, de Nira (Lidak), de Juanilo, de Mena et de Fulgarite ou Folgarita (dependances de 1'Etat de Harnenno).
ART. 5
La Neerlande cede au Portugal le royaume de Moubara (Maubara) et cette partie d'Ambenu ou d'Ambeno (Sutrana) qui, depuis plusieurs annees, a arbore le pavilion Portugais.
Immediatement apres que 1'echange des ratifications de ce traite par Leurs Majestes le Roi des Pays-Bas et le Roi de Portugal aura eu lieu, le Gouvernement des Pays-Bas donnera 1'ordre a Tautorite su- perieure des Indes Neerlandaises de remettre le royaume de Moubara (Maubara) a Tautorite superieure Portugaise de Timor Dilly.
ART. 6
La Neerlande se desiste de toute prevention sur Tile de Kambing (Pulo Kambing), au nord de Dilly, et reconnait la souverainete du Portugal sur cette ile.
ART. 7
Le Portugal cede a la Neerlande les possessions suivantes: sur Tile de Flores, les Etats de Larantuca, Sicca et Paga, avec leurs dependances ;
sur Tile d'Adenara, 1'Etat de Woure ;
sur Tile de Solor, 1'Etat de Pamangkaju.
Le Portugal se desiste de toutes les pretentious que peut-etre, il
THE ISLAND OF TIMOR CASE 601
aurait pu f aire valoir sur d'autres Etats ou endroits situes sur les iles ci-dessus nominees, ou sur celles de Lomblen, de Pantar et d'Ombaij, que ces Etats portent le pavilion Neerlandais ou Portugais.
ART. 8
En vertu des dispositions de 1'article precedent, la Neerlande obtient la possession entiere en non-partagee de toutes les iles situees au nord de Timor, savoir: celles de Flores, d'Adenara, de Solor, de Lomblen, de Pantar (Quantar) et d'Ombaij, avec les petites iles environnantes appartenant a PArchipel de Solor.
ART. 9
En compensation de ce que le Portugal pourrait perdre a 1'echange des possessions respectives ci-dessus mentionnees, le Gouvernement des Pays-Bas:
1°. donnera au Gouvernement Portugais quittance complete de la somme de 80,000 florins, empruntee en 1851 par le Gouvernement des possessions Portugaises dans PArchipel de Timor au Gouvernement des Indes Neerlandaises ;
2°. remettra en outre au Gouvernement Portugais une somme de 120,000 florins des Pays-Bas.
Cette somme sera versee un mois apres 1'echange des ratifications du present traite.
ART. 10
La liberte des cultes est garantie de part et d'autre aux habitants des territoires echanges par le present traite.
ART. 11
Le present traite, qui sera soumis a la sanction des pouvoirs legisla- tifs en conformite des regies prescrites par les lois fondamentalcs en vigueur dans les Royaumes des Pays-Bas et du Portugal, sera ratifie et les ratifications seront echangees a Lisbonne, dans le delai de huit mois, a partir de sa signature, ou plus tot, si faire se peut.
En foi de quoi les plenipotentiaires respectifs ont signe le present traite, et y ont appose le sceau de leurs armes.
Fait a Lisbonne, le vingt Avril mil huit cent cinquante-neuf.
(L. S.) (Signe) M. HELDEWIER (L.S.) ------
(Signe) A. M. DE FONTES PEREIRA DE MELLO
Convention of June iof 1893, between the Netherlands and Portugal relative to Commerce, Navigation, Boundaries, etc.*
Sa Majeste la Reine des Pays-Bas et en Son Nom Sa Majeste la Reine-Regente du Royaume.
Official report, p. 34,
602 ORIGINAL TEXTS
et Sa Majeste le Roi de Portugal et des Algarves, reconnaissant la communaute d'interets qui existe entre Leurs possessions dans PArchi- pel de Timor et Solor et voulant regler dans un esprit de bonne entente mutuelle les conditions les plus favorables au developpement de la civilisation et du commerce dans Leurs dites possessions, ont resolu de conclure une convention speciale et ont nomme a cet effet pour Leurs plenipotentiaires, savoir:
lesquels, apres s'etre communique leurs pleins pouvoirs respectifs, trouves en bonne et due forme, sont convenus des articles suivants :
ARTICLE ler
Afin de faciliter Pexercice de leurs droits de Souverainete, les Hautes Parties contractantes estiment qu'il y a lieu d'etablir d'une fagon plus claire et plus exacte la demarcation de leurs possessions a Pile de Timor et de faire disparaitre les enclaves actuellement existantes.
ART. 2
Les Hautes Parties contractantes nommeront a cet effet une com- mission d'experts qui sera chargee de f ormuler une proposition pouvant servir de base a la conclusion d'une convention ulterieure, determinant la nouvelle ligne de demarcation dans la dite ile.
Cette convention sera soumise a Papprobation de la legislature des deux pays.
ART. 3
II sera accorde a Pile de Timor aux bateaux pecheurs appartenant aux sujets de chacune des Hautes Parties contractantes, ainsi qu'a leurs equipages, la meme protection de la part des autorites respectives, que celles dont jouiront les sujets respectifs.
Le commerce, Pindustrie et la navigation des deux pays y jouiront du traitement de la nation etrangere la plus favorisee, sauf le traite- ment special accorde respectivement par les Hautes Parties contrac- tantes aux Etats indigenes.
ART. 4
Les Hautes Parties contractantes decident que Pimportation et Pexportation de toutes armes a feu entieres ou en pieces detachees, de leurs cartouches, des capsules ou d'autres munitions, destinees a les approvisionner, sont interdites dans leurs possessions de PArchipel de Timor et Solor.
Independamment des mesures prises directement par les Gouverne- ments pour Parmement de la force publique et Porganisation de leur defense, des exceptions pourront etre admises a titre individuel pour leurs sujets Europeens, off rant une garantie suffisante que Parme et les munitions qui leur seraient delivrees, ne seront pas cedees ou vendues a des tiers, et pour des voyageurs etrangers, munis d'une declaration de leur Gouvernement constatant que Parme et les muni- tions sont exclusivement destinees a leur defense personnelle.
THE ISLAND OF TIMOR CASE 603
ART. 5
Toutefois les autorites superieures de la partie neerlandaise et de la partie portugaise de Tile de Timor seront autorisees a fixer annuelle- ment, d'un commun accord, le nombre et la qualite des armes a feu non perfectionnees et la quantite de munitions qui pourront etre in- troduites dans le courant de la meme annee, ainsi que les conditions dans lesquelles cette importation pourra etre accordee.
Cette importation cependant ne pourra se faire que par rinterme- diaire de certaines personnes ou agents qui resident a Tile meme et qui auront obtenu a cet egard un autorisation speciale de radminis- tration superieure respective.
En cas d'abus cette autorisation sera immediatement retiree et ne pourra etre renouvelee.
ART. 6
Le Gouvernement neerlandais, voulant donner une preuve de son desir de eonsolider ses rapports de bon voisinage, declare renoncer a Tindemnite a laquelle il pretend avoir droit du chef de certains traite- ments que des pecheurs Neerlando-Indiens ont subi de 1889 a 1892 de la part des autorites du Timor-portugais.
ART. 7
Dans le cas ou quelque difficulte surgirait par rapport a leurs rela- tions intercolonial es dans TArchipel de Timor et Solor ou au sujet de rinterpretation de la presente convention, les Hautes Parties contrac- tantes s'engagent a se soumettre a la decision d'une commission d'arbitres.
Cette commission sera composee d'un nombre egal d'arbitres choisis par les Hautes Parties contractantes et d'un arbitre designe par ces arbitres.
ART. 8
I>a presente convention sera ratifiee et les ratifications en seront echangees a Lisbonne.
En foi de quoi, les plenipotentiaires 1'ont signee et y ont appose leurs chachets.
Fait a Lisbonne, en double expedition, le dix juin mil huit cent quatre-vingt-treize.
(L. S.) (Signe) CAREL VAN HEECKEREN
" " ERNESTO RODOLPHO HINTZE RIBEIRO
Declaration of July /, 1893, regarding Cession of Territory*
Les soussignes plenipotentiaires des Gouvernements signataires de
la convention du 10 juin 1893 sont convenus de la declaration suivante.
Afin d'assurer le resultat de leur action commune qui tend surtout a
1Official report, p. 36.
604 ORIGINAL TEXTS
encourager le commerce et Tindustrie de leurs nationaux par des garan- ties de securite et de stabilite, les Hautes Parties contractantes decla- rent qu'elles se reconnaissent reciproquement, en cas de cession soit en partie soit en totalite de leurs territoires ou de leurs droits de souverainete dans PArchipel de Timor et Solor, le droit de prefer- ence a des conditions similaires ou equivalentes a celles qui auront etc offertes. Les cas de disaccord sur ces conditions tombent egalement sous Tapplication de Particle septieme de la convention precitee.
La presente declaration qui sera ratifiee en meme temps que la convention conclue a Lisbonne le 10 juin 1893, sera considered comme faisant partie integrante de cette convention et aura la meme force et valeur.
En foi de quoi, les plenipotentiaires respectifs ont signe la presente declaration et y ont appose leurs cachets.
Fait a Lisbonne en double expedition, le ler juillet 1893. (L. S.) (Signe) CAREL VAN HEECKEREN
" " ERNESTO RODOLPHO HINTZE RIBEIRO
Convention of October i, 1904, settling the Boundary of the Island of
Timor1
Sa Majeste la Reine des Pays-Bas et Sa Majeste le Roi de Portugal et des Algarves, etc., etc.
reconnaissant la communaute d'interets qui existe entre Leurs pos- sessions dans PArchipel de Timor et de Solor, et desirant arriver a une demarcation claire et exacte de ces possessions dans Tile de Timor, apres avoir pris connaissance du resultat des travaux de la Commis- sion mixte pour la regularisation des f rontieres neerlandaises et portu- gaises dans Tile de Timor, institute par les Gouvernements respectifs en vertu de 1'article II de la Convention conclue entre les Hautes Parties a Lisbonne le 10 juin 1893, ont resolu de conclure une Conven- tion a cet effet et ont nomme pour Leurs plenipotentiaires.
Lesquels apres s'etre communique leurs pleins-pouvoirs, trouves en bonne et due forme, sont convenus de ce qui suit:
ARTICLE ler Les Pays-Bas cedent le Maucatar au Portugal.
ART. 2
Le Portugal cede aux Pays-Bas le Noimuti, le Tahakay et le Tamiru Ailala.
ART. 3
La limite entre O'Kussi-Ambenu, appartenant au Portugal, et les possessions neerlandaises dans Tile de Timor est f ormee par une ligne :
1Official report, p. 37.
THE ISLAND OF TIMOR CASE 605
1°. partant du point a Tembouchure de la Noel (riviere) Besi d'ou le point culminant de Pulu-(ile) Batek se voit sous un azimut astrono- mique de trente degres quarante-sept minutes Nord-Ouest, suivant le thalweg de la Noel Besi, celui de la Noel Niema et celui de la Bidjael Sunan jusqu'a sa source;
2°. montant de la jusqu'au sommet Bidjael Sunan, et descendant par le thalweg de la Noel Miu Mavo jusqu'au point situe au Sud-Ouest du village Oben;
3°. de la passant a 1'ouest de ce village par les sommets Banat et Kita jusqu'au sommet Nivo Nun Po; de la suivant le thalweg des rivieres la Nono Boni et la Noel Pasab jusqu'a son affluent le Nono Susu, et montant le Nono Susu jusqu'a sa source;
4°. passant le Klus (Crus) jusqu'au point ou la frontiere entre Abani et Nai Bobbo croise la riviere la Fatu Basin, et de la au point nomm£ Subina ;
5°. descendant ensuite par le thalweg de la Fatu Basin jusqu'a la Ke An; de la jusqu'au Nai Nao;
6°. passant le Nai Nao et descendant dans la Tut Nonie, par le thalweg de la Tut Nonie jusqu'a la Noel Ekan;
7°. suivant le thalweg de la Noel Ekan jusqu'a 1'affluent le Sonau, par le thalweg de cet affluent jusqu'a sa source et de la a la riviere Nivo Nono;
8°. montant par le thalweg de cette riviere jusqu'a sa source, pour aboutir, en passant le point nomme Ohoe Baki, a la source de la Nono Balena ;
9°. suivant le thalweg de cette riviere, celui de la Nono Nise et celui de la Noel Bilomi jusqu'a 1'affluent de celle-ci le Oe Sunan;
10°. a partir de ce point la limite suit le thalweg de 1'Oe Sunan, traverse autant que possible Nipani et Kelali (Keli), gagne la source de la Noel Meto et suit le thalweg de cette riviere jusqu'a son embouchure.
ART. 4
La partie de la limite entre O'Kussi Ambenu et les possessions neerlandaises, visee a 1'article 3 10°., sera arpentee et indiquee sur le terrain dans le plus court delai possible.
L'arpentage de cette partie et 1'indication sur le terrain seront cer- tifies par un proces-verbal avec une carte a dresser en deux exem- plaires qui seront soumis a 1'approbation des Hautes Parties con- tractantes ; apres leur approbation, ces documents seront signes au nom des Gouvernements respectifs.
Ce n'est qu'apres la signature de ces documents que les Hautes Parties contractantes acquereront la souverainete des regions men- tionnees aux articles 1 et 2.
ART. 5
La limite entre les possessions des Pays-Bas dans la partie occiden- tale et du Portugal dans la partie orientale de Tile de Timor suivra du Nord au Sud une ligne:
1°. partant de 1'embouchure de la Mota Biku (Silaba) par le thalweg
606 ORIGINAL TEXTS
de cette riviere jusqu'a son affluent le We Bedain, par le thalweg du We Bedain, jusqu'a la Mota Asudaat (Assudat), par le thalweg de cette riviere jusqu'a sa source, et suivant de la dans la direction du Nord au Sud les coteaux du Kleek Teruin (Klin Teruin) et du Berenis (Birenis) Kakotun;
2°. puis jusqu'a la riviere Muda Sorun, suivant le thalweg de cette riviere, et celui de la Tuah Naruk jusqu'a la riviere le Telau (Talau) ;
3°. suivant le thalweg de la Telau jusqu'a la riviere la Malibaka, par le thalweg de cette riviere, celui de la Mautilu, et celui de la Pepies jusqu'a la montagne Bulu Hulu (Bulu Bulu) ;
4°. de la jusqu'au Karawa Kotun, du Karawa Kotun par le thalweg de la riviere la Marees (Lolu) jusqu'a la riviere la Tafara, par le thalweg de cette riviere jusqu'a sa source appelee la Mota Tiborok (Tibor), et montant de la au sommet Dato Miet et descendant a la Mota Alun;
5°. par le thalweg de la Mota Alun, celui de la Mota Sukaer (Sukar), et celui de la Mota Baukama, jusqu'a 1'affluent de celle-ci, appele Kalan-Fehan;
6°. passant les montagnes Tahi Fehu, Fatu Suta, Fatu Rusa, le grand arbre nomine Halifea, le sommet Uas Lulik, puis traversant la riviere la We Merak ou elle regoit son affluent We Nu, puis passant la grande pierre nommee Fatu Rokon, les sommets Fitun Monu, Debu Kasa- bauk, Ainin Matan et Lak Fuin ;
7°. du Lak Fuin jusqu'au point ou la Hali Sobuk se jette dans la Mota Halibol et par le thalweg de cette riviere jusqu'a sa source ;
8°. de cette source jusqu'a celle de la Mota Bebulu, par le thalweg de cette riviere jusqu'a la We Diek, montant aux sommets Ai Kakar et Takis, descendant dans la Mota Masin et suivant le thalweg de la Mota Masin et de son embouchure nommee Mota Talas.
ART. 6
Sauf les dispositions de 1'article 4, les limites decrites aux articles 3 et 5 sont tracees sur les cartes annexees a la presente Convention et signees par les plenipotentiaires respectifs.
ART. 7
Les territoires respectivement cedes seront evacuees et 1 'admin istra- tion en sera remise aux autorites competentes dans les six mois apres 1'approbation du proces-verbal vise a 1'article 4.
ART. 8
Les archives, cartes et autres documents relatifs aux territoires cedes, seront remis aux nouvelles autorites en meme temps que les territoires memes.
ART. 9
La navigation sur les rivieres formant limite sera libre aux sujets des deux Hautes Parties contractantes a 1'exception du transport d'armes et de munitions.
THE ISLAND OF TIMOR CASE 607
ART. 10
Lors de la remise des territoires cedes, des bornes en pierre in- diquant 1'annee de la presente convention, d'une forme et d'une dimen- sion convenables au but qu'elles sont destinees a remplir, seront plantees avec solennite a un endroit convenable de la cote pres de 1'embouchure des rivieres nominees ci-apres. Les bornes neerlandaises seront plantees sur les rives occidentales de la Mota Biku et de la Mota Masin et les bornes portugaises sur les rives orientales de ces rivieres. Les quatre bornes en pierre seront fournies par le Gouverne- ment Neerlandais aux frais des deux gouvernements et le Gouverne- ment Neerlandais mettra un batiment de la marine royale a la dis- position des autorites respectives pour la remise solennelle des terri- toires cedes et la plantation des bornes.
En outre la frontiere, ou elle n'est pas formee par des limites natu- relles, sera d'un commun accord demarquee sur le terrain par les autorites locales.
ART. 11
Sauf les dispositions de 1'article 4, il sera dresse proces-verbal en langue frangaise constatant la cession des territoires et la plantation des bornes.
Les proces-verbaux seront dresses en doubles exemplaires et signes par les autorites respectives des deux pays.
ART. 12
La liberte des cultes est garantie de part et d'autre aux habitants des territoires echanges par la presente Convention.
ART. 13
Les Hautes Parties contractantes se reconnaissent reciproquement, en cas de cession soit en partie soit en totalite de leurs territoires ou de leurs droits de souverainete dans TArchipel de Timor et Solor, le droit de preference a des conditions similaires ou equivalentes a celles qui auraient etc offertes.
ART. 14
Toutes questions ou tous differends sur Tinterpretation ou Texecu- tion de la presente Convention, s'ils ne peuvent etre regies a Tamiable, seront soumis a la Cour Permanente d'Arbitrage conformement aux dispositions prevues au chapitre II de la Convention Internationale du 29 juillet 1899 pour la solution pacifique des conflits interna- tionaux.
ART. 15
La presente Convention sera ratifee et les ratifications en seront echangees aussitot que possible apres Tapprobation de la legislature des deux Pays.
608 ORIGINAL TEXTS
En foi de quoi les plenipotentiaires respectifs ont signe la presente Convention et y ont appose leurs cachets.
Fait, en double expedition, a La Haye le lar Octobre 1904.
(L.-S.) (Signe) BN MELVIL DE LYNDEN (L.-S.) " IDENBURG (L-S.) w CONDE DE SELIR
THE NORTH SEA or DOGGER BANK CASE
Report of the Commission of Inquiry, February 26, /P051
1**. Les Commissaires, apres un examen minutieux et prolonge de 1'ensemble des faits parvenus a leur connaissance sur 1'incident soumis a leur enquete par la Declaration de Saint-Petersbourg du 12 (25) Novembre 1904, ont procede dans ce Rapport a un expose analytique de ces faits suivant leur enchainement rationnel.
En faisant connaitre les appreciations dominantes de la Commission en chaque point important ou decisif de cet expose sommaire, ils pen- sent avoir mis suffisament en lumiere les causes et les consequences de Tincident en question en meme temps que les responsabilites qui s'en degagent
2. La seconde escadre Russe de la flotte du Pacifique, sous le com- mandement en chef du Vice-Amiral Aide-de-camp General Rojdest- vensky, mouillait le 7 (20) Octobre 1904, aupres du Cap Skagen avec Tintention de faire du charbon avant de continuer sa route pour rExtreme-Orient.
II parait, d'apres les depositions acquises, que, des le depart de 1'escadre de la rade de Reval, TAmiral Rojdestvensky avait fait pren- dre des precautions minutieuses par les batiments places sous ses ordres afin de les mettre pleinement en etat de repousser pendant la nuit une attaque de torpilleurs, soit a mer, soit au mouillage.
Ces precautions semblaient justifiecs par les nombreuses informa- tions des Agents du Gouvernement Imperial au sujet de tentatives hostiles a redouter, et qui, selon toutes vraisemblances, devaient se produire sous la forme d'attaques de torpilleurs.
En outre, pendant son sejour a Skagen TAmiral Rojdestvensky avait etc averti de la presence de batiments suspects sur la cote de Norvege. II avait appris, de plus, par le Commandant du transport "Bakan," arrivant du nord, que celui-ci avait apergu la nuit precedente quatre torpilleurs portant un seul feu et en tete de mat.
Ces nouvelles deciderent TAmiral a avancer son depart de vingt- quatre heures.
3. En consequence, chacun des six echelons distincts de Tescadre appareilla separement a son tour et gagna la Mer du Nord, inde- pendamment, dans 1'ordre indique par le rapport de I'Amiral Rojdest- vensky ; cet officier general commandant en personne le dernier echelon forme par les quatre nouveaux cuirasses "Prince Souvoroff," "Em- pereur Alexandre III," "Borodino," "Orel," et le transport "Anadyr."
Cet echelon quitta Skagen le 7 (20) Octobre a 10 heures du soir. La vitesse de 12 noeuds fut prescrite aux deux premiers echelons, formes de torpilleurs, et celle de 10 noeuds aux fchelons suivants.
^British and Foreign State Papers, vol. 99, p. 921.
610 ORIGINAL TEXTS
4. Entre 1 heure 30 et 4 heures 15 de Tapres-midi du lendemain, 8 (21) Octobre, tons les echelons de 1'escadre furent croises successive- ment par le vapeur Anglais, "Zero," dont le Capitaine examina avec assez d'attention les differentes unites pour permettre de les recon- naitre d'apres la description qu'il en fit.
Les resultats de ses observations sont conformes d'ailleurs en general aux indications du rapport de 1'Amiral Rojdestvensky.
5. Le dernier navire croise par le "Zero" etait le "Kamchatka," d'apres la description qu'il en donna.
Ce transport, qui formait primitivement groupe avec le "Dmitri Donskoi" et 1' "Avrora," se trouvait done alors attarde et isole a une dizaine de milles environ en arriere de 1'escadre; il avait etc oblige de diminuer de vitesse a la suite d'une avarie de machine.
Ce retard accidental fut peut-etre la cause incidente des evenements qui suivirent.
6. Vers 8 heures du soir, en effet, ce transport rencontra le batiment Suedois "Aldebaran" et d'autres navires inconnus, qu'il canonna sans doute par suite des preoccupations que lui causaient dans les circon- stances du moment son isolement, ses avaries de machine et son peu de valeur militaire.
Quoiqu'il en soit, le Commandant du "Kamchatka" transmit a 8 heures 45 a son Commandant-en-chef par la telegraphic sans fil, au sujet de cette rencontre, Tin formation qu'il etait "attaque de tous cotes par des torpilleurs."
7. Pour se rendre compte de la part que cette nouvelle put prendre dans les determinations ulterieures de 1'Amiral Rojdestvensky, il faut considerer que dans ses previsions les torpilleurs assaillants, dont la presence lui etait ainsi signalee, a tort ou a raison, a une cinquantaine de milles en arriere de 1'echelon des vaisseaux qu'il commandait, pouvaient le rejoindre pour 1'attaquer a son tour vers 1 heure du matin.
Cette information decida 1'Amiral Rojdestvensky a signaler a ses batiments vers 10 heures du soir de redoubler de vigilance et de s'at- tendre a une attaque de torpilleurs.
8. A bord du "Souvoroff" 1'Amiral avait juge indispensable que Tun des deux officiers superieurs de son etat-major fut de quart sur la passerelle de commandement pendant la nuit afin de surveiller, a sa place, la marche de 1'escadre et de le prevenir immediatement s'il se produisait quelque incident.
A bord de tous les batiments, d'ailleurs, les ordres permanents de PAmiral prescrivaient que 1'Officier chef de quart etait autorise a ouvrir le feu dans le cas d'une attaque evidente et imminente de torpilleurs.
Si 1'attaque venait de 1'avant il devait le faire de sa propre initiative, et, dans le cas contraire, beaucoup moins pressant, il devait en ref erer a son Commandant.
Au sujet de ces ordres la majorite des Commissaires estime qu'ils n'avaient rien d'excessif en temps de guerre, et particulierement dans les circonstances, que 1'Amiral Rojdestvensky avait tout lieu de con-
THE NORTH SEA OR DOGGER BANK CASE 611
siderer comme tres alarmantes, dans Timpossibilite ou il se trouvait dc controler 1'exactitude des avertissements qu'il avail recus des Agents de son Gouvernement.
9. Vers 1 heure du matin le 9 (22) Octobre, 1904, la nuit etait a demi obscure, un peu voilee par une brume legere et basse. La lune ne se montrait que par intermittences entre les nuages. Le vent soufflait moderement du sud-est, en soulevant une longue houle qui imprimait aux vaisseaux des roulis de 5 degres de chaque bord.
La route suivie par Tescadre vers le sud-ouest devait conduire les deux derniers echelons, ainsi que la suite des evenements 1'a prouve, a passer a proximite du lieu de peche habituel de la flottille des chalutiers de Hull, composee d'une trentaine de ces petits batiments a vapeur et couvrant une etendue de quelques milles.
II resulte des depositions concordantes des temoins Britanniques que tous ces bateaux portaient leurs feux reglementaires et chalutaient con- formement a leurs regies usuelles, sous la conduite de leur maitre de peche, suivant les indications de fusees conventionnelles.
10. D'apres les communications regues par la telegraphic sans fil, rien d'anormal n'avait etc signale par les echelons qui precedaient celui de TAmiral Rojdestvensky en franchissant ces parages.
On a su depuis, notamment, que 1'Amiral Folkersam, ayant etc con- duit a contourner la flotille dans le nord, eclaira de tres pres avec ses projecteurs electriques les chalutiers les plus voisins et, les ayant reconnus ainsi pour des batiments inoffensifs, continua tranquillement sa route.
11. C'est peu de temps apres qu'arrivait a son tour, a proximite du lieu de peche des chalutiers, le dernier echelon de Tescadre conduit par le "Souvoroff," battant pavilion de 1'Amiral Rojdestvensky.
La route de cet echelon le conduisait a peu pres sur le gros de la flottille des chalutiers, qu'il allait done etre oblige de contourner, mais dans le sud, quand 1'attention des officiers de service sur les pas- serelles du "Souvoroff" fut attiree par une fusee verte qui les mit en defiance.
Cette fusee, lancee par le maitre depeche, indiquait en realite, suivant leurs conventions, que les chalutiers devaient draguer le cote tribord au vent.
Presque immediatement apres cette premiere alerte et en se rap- portant aux depositions, les observateurs, qui des passerelles du "Sou- voroff" fouillaient Thorizon avec des jumelles de nuit, decouvrirent "sur la crete des lames dans la direction du bossoir de tribord et a une distance approximative de 18 a 20 encablures" un batiment qui leur parut suspect parce qu'ils ne lui voyaient aucun feu et que ce batiment leur semblait se diriger vers eux a contre-bord.
Lorsque le navire suspect fut eclaire par un projecteur, les obser- vateurs crurent reconnaitre un torpilleur a grande allure.
C'est d'apres ces apparences que TAmiral Rojdestvensky fit ouvrir le feu sur ce navire inconnu.
La majorite des Commissaires exprime a ces sujet Topinion que la
612 ORIGINAL TEXTS
responsabilite de cet acte et les resultats de la cannonade essuyee par la flottille de peche incombent a 1'Amiral Rojdestvensky.
12. Presque aussitot apres 1'ouverture du feu par tribord, le "Souvoroff" apercut sur son avant un petit bateau lui barrant la route et fut oblige de lancer sur la gauche pour eviter de 1'aborder. Mais ce bateau, eclaire par un projecteur, fut reconnu etre un chalutier.
Pour empecher que le tir des vaisseux fut dirige sur ce batiment inoffensif, 1'axe du projecteur fut aussitot releve a 45°. vers le ciel.
Ensuite, 1'Amiral fit adresser par signal a 1'escadre Tordre "de ne pas tirer sur les chalutiers."
Mais en meme temps que le projecteur avait eclaire ce bateau de peche, d'apres les depositions des temoins, les observateurs du "Sou- voroff" apergurent a babord un autre batiment qui leur paru suspect, a cause de ses apparences de meme nature que celles de 1'objectif du tir par tribord.
Le feu fut aussitot ouvert sur ce deuxieme but et se trouva ainsi engage des deux bords, la file des vaisseaux etant revenue par un mouvement de contre-marche a sa route primitive sans avoir change de vitesse.
13. D'apres les ordres permanents de 1'escadre, 1'Amiral indiquait les buts sur lesquels devait etre dirige le tir des vaisseaux en fixant sur eux ses projecteurs. Mais comme chaque vaisseau balayait 1'hori- son en tout sens autour de lui avec ses propres projecteurs pour se garder d'une surprise, il etait difficile qu'il ne se produisit pas de confusion.
Ce tir, d'une duree de dix a douze minutes, causa de graves dom- mages dans la flottille des chalutiers. C'est ainsi que deux hommes furent tues et six autres blesses; que le "Crane" sombra; que le "Snipe," le "Mino," le "Moulmein," le "Gull," et le "Majestic" re- gurent des avaries plus ou moms importantes.
D 'autre part le croiseur "Avrora" fut atteint par plusieurs pro- jectiles.
La majorite des Commissaires constate qu'elle manque 1'elements precis pour reconnaitre sur quel but ont tire les vaisseaux; mais les Commissaires reconnaissent unanimement que les bateaux de la flot- tille de peche n'ont commis aucun acte hostile; et la majorite des Com- missaires etant d'opinion qu'il n'y avait, ni parmi les chalutiers, ni sur les lieux, ancun torpilleur, Touverture du feu par 1'Amiral Roj- destvensky n'etait pas justifiable.
Le Commissaire Russe, ne se croyant pas fonde a partager cette opinion, enonce la conviction que ce sont precisement les batiments suspects s'approchant de 1'escadre dans un but hostile qui ont provoque le feu.
14. Au sujet des but reels de ce tir nocturne, le fait que 1'" Avrora" a regu quelques projectiles de 47 millim. et de 75 millim. serait de nature a faire supposer que ce croiseur, et peut-etre meme quelque autre batiment Russe, attarde sur la route du "Souvoroff" a 1'insu de ce vaisseau, ait pu provoquer et attirer les premiers f eux.
Cette erreur pouvait etre motivee par le fait que ce navire, vu de
THE NORTH SEA OR DOGGER BANK CASE 613
1'arriere, ne montrait aucune lumiere apparente, et par une illusion d'optique nocturne dont les observateurs du vaisseau-amiral auraient cte 1'objet.
A ce propos les Commissaires constatent qu'il leur manque des renseignements importants leur permettant de connaitre les raisons qui ont provoque la continuation du tir a babord.
Dans cette conjecture certains chalutiers eloignes auraient pu etre confondus ensuite avec les buts primitifs et ainsi canonnes directe- ment. D'autres, au contraire, ont pu etre atteints par un tir dirige sur des buts plus eloignes.
Ces considerations ne sont pas d'ailleurs en contradiction avec les impressions de certains chalutiers qui, en se voyant atteints par des projectiles et restant eclaires dans le pinceau des projecteurs, pou- vaient se croire 1'objet d'un tir direct.
15. La duree du tir sur tribord, meme en se plac.ant au point de vue de la version Russe, a semble a la majorite des Commissaires avoir etc plus longue qu'elle ne paraissait necessaire.
Mais cette majorite estime qu'elle n'est pas suffisamment renseignee ainsi qu'il vient d'etre dit, au sujet de la continuation du tir par babord.
En tout cas, les Commissaires se plaisent a reconnaitre a 1'unanimite que 1'Amiral Rojdestvensky a fait personnellement tout ce qu'il pou- vait, du commencement a la fin, pour empecher que les chalutiers, re- connus comme tels, fussent 1'objet du tir de 1'escadre.
16. Quoiqu'il en soit, le "Dmitri Donskoi" ayant fini par signaler son numero, I'Amiral se decida a faire le signal general de "cesser le feu" ; la file de ses vaisseaux continua alors sa route et disparut dans le sud-ouest sans avoir stoppe
A cet egard, les Commissaires sont unanimes a reconnaitre, qu'apres les circonstances qui ont precede Tincident et celles qui 1'ont produit, il y avait a la fin du tir assez d'incertitudes au sujet du danger que courait 1'echelon des vaisseaux pour decider 1'Amiral a continuer sa route.
Toutefois, la majorite des Commissaires regrette que 1'Amiral Rojdestvensky n'ait pas eu la preoccupation, en franchissant le Pas de Calais, d'informer les autorites des Puissances maritimes voisines qu'ayant etc amene a ouvrir le feu pres d'un groupe de chalutiers, ces bateaux, de nationalite inconnue, avaient besoin de secours.
17. Les Commissaires, en mettant fin a ce Rapport, declarent que leurs appreciations, qui s'y trouvent formulees, ne sont dans leur esprit de nature a jeter aucune deconsideration sur la valuer militaire ni sur les sentiments d'humanite de 1'Amiral Rojdestvensky et du personnel de son escadre.
SPAUN
FOURNIER
DOUBASSOFF LEWIS BEAUMONT CHARLES HENRY DAVIS
614 ORIGINAL TEXTS
Agreement for Inquiry, November 12/35, 1904*
Le Gouvernement de Sa Majeste Britannique et le Gouvernement Imperial de Russie s'etant mis d'accord pour confier a une Commission Internationale d'Enquete, reunie conformement aux Articles IX-XIV de la Convention de La Haye du 29 (17) Juillet 1899, pour le regle- ment pacifique des conflits internationaux, le soin d'eclaircir par un examen impartial et consciencieux les questions de fait se rapportant a Tincident qui s'est produit durant la nuit du 21—22 (8-9) Octobre, 1904, dans la mer du Nord — au cours duquel le tir des pieces de canon de la flotte Russe occasionna la perte d'un bateau et la mort de deux personnes appartenant a une flotille de pecheurs Britanniques, ainsi que des dommages a d'autres bateaux de la dite flotille et des blessures aux equipages de quelques-uns de ces bateaux — les Soussignes, dument autorises a cet effet, sont convenus des dispositions suivantes:
Art. I. La Commission Internationale d'Enquete sera composee de cinq membres (Commissaires), dont deux seront des officers de haut rang des marines Britannique et Imperiale Russe respectivement. Les Gouvernements de France et des fitats-Unis d'Amerique seront pries de choisir, chacun, un de leurs officiers de marine de haut rang comme membre de la Commission. Le cinquieme membre sera elu d 'accord par les quatre membres susmentionnes.
Dans le cas ou il ne se produirait pas d 'entente entre les quatres Commissaires pour le choix du cinquieme membre de la Commission, Sa Majeste 1'Empereur d'Autriche, Roi de Hongrie, sera invite a le nommer.
Chacune des deux Hautes Parties Contractantes nommera egale- ment un jurisconsulte-assesseur avec voix consultative et un agent, charges, a titre officiel, de prendre part aux travaux de la Commission.
II. La Commission devra faire une enquete et dresser un rapport sur toutes les circonstances relatives a Tincident de la mer du Nord, en particulier sur la question ou git la responsabilite et sur le degre de blame concernant les ressortissants des deux Hautes Parties Contrac- tantes ou d'autres pays, dans le cas ou leur responsabilite se trouverait constatee par Tenquete.
III. La Commission fixera les details de la procedure qui sera suivie par elle pour Taccomplissement de la tache qui lui est devolue.
IV. Les deux Hautes Parties Contractantes s'engagent a fournir a la Commission Internationale d'Enquete, dans la plus large mesure qu'elles jugeront possible, tous les moyens et les facilites necessaires pour la connaissance complete et Tappreciation exacte des faits en question.
V. La Commission se reunira a Paris aussitot que faire se pourra, apres la signature de cet Arrangement.
VI. La Commission presentera aux deux Hautes Parties Contrac- tantes son rapport signe par tous les membres de la Commission.
VII. La Commission prendra toutes ses decisions a la majorite des voix des cinq Commissaires.
^British and Foreign State Papers, vol. 97, p. 77.
THE NORTH SEA OR DOGGER BANK CASE 615
VIII. Les deux Hautes Parties Contractantes s'engagent a garder chacune a sa charge, par reciprocite, les frais de Tenquete faite par elle prealablement a la reunion de la Commission. Quant aux depenses qui incomberont a la Commission Internationale d'Enquete a partir du moment de sa reunion pour 1'installation de ses services et les in- vestigations necessaires, elles seront faites en commun par les deux Gouvernements.
En foi de quoi les Soussignes ont signe la presente Declaration et y ont appose le sceau de leurs armes.
Fait en double a Saint-Petersbourg, le 25 (12) Novembre, 1904.
(L. S.) CHARLES HARDINGE (L. S.) COMTE LAMSDORFF
Supplementary Protocol of November 12/25, J9°4f to t^ie Agreement
for Inquiry1
Les Soussignes se sont reunis aujourd'hui a 1'Hotel du Ministere Imperial des Affaires fitrangeres pour proceder a la signature d'une Declaration entre le Gouvernement de Sa Majeste Britannique et le Gouvernement Imperial de Russie concernant Tinstitution d'une Com- mission Internationale d'Enquete au sujet de 1'incident de la mer du Nord.
Apres lecture des instruments respectifs, lesquels ont ete trouves en bonne et due forme, la signature de la dite Declaration a en lieu selon Tusage.
En foi de quoi les Soussignes ont dresse le present Protocole et Font revetu du sceau de leurs armes.
Fait en double a Saint-Petersbourg, le 25 (12) Novembre, 1904.
(L. S.) CHARLES HARDINGE (L. S.) COMTE LAMSDORFF
^British and Foretgn State Papers, vol. 97, p. 79.
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES Report of the Commission of Inquiry, July 23,
Les Commissaires, apres avoir examine et rapproche les renseigne- ments fournis, tant par les documents presentes par les deux parties que par les temoignages recueillis, apres avoir fait la part d'importance qui peut revenir a chacun des renseignements recueillis et tenu comptc du degre d'incertitude relative de chacun d'eux, a delibere et conclu ainsi qu'il suit:
I
Les renseignements et les documents presentes ne sont pas de nature a permettre de determiner des points geographiques precis pour les diverses circonstances soumises a 1'enquete, mais simplement des zones dans lesquelles ces circonstances se seraient produites, sans qu'il soit possible de choisir un point particulier dans ces zones.
1°. Sur le point ou a etc arrete la Tavignano.
Ce point est compris a Tinterieur d'un quadrilatere rectiligne deter- mine p?r les quatre sommets suivants:
Sommet C ..... JLatitude 33° 29' 20" Nord.
(Longitude 8° 56' 40" Est de Paris.
Sommet B ..... JLatitude 33° 29' 10" Nord.
(Longitude 8° 55' 10" Est de Paris.
Sommet A {Latitude 33° 26' 30" Nord.
(Longitude 8° 54' 40" Est de Paris.
Sommet D ..... /Latitude 33° 26' 30" Nord.
(Longitude 8° 56' 40" Est de Paris.
2°. En ce qui concerne la poursuite des mahonnes.
A. Par le Fulmine.
Le Fulmine, partant dfun point indeterminable de la zone ci-dessus definie, a poursuivi les mahonnes, peut-etre en sortant de cette zone, dans une direction qui n'a pu etre precisee, mais qui est comprise entre le Sud-Est et le Sud-Ouest par le Sud.
Les mahonnes poursuivies se trouvaient aux points suivants, qui sont le centre d'un cercle d'incertitude d'un demi-mille de rayon :
Camouna .......... (Latitude 33° 24' 10" Nord
(Longitude 9° 00' 15" Est de Paris
Gaulois (Latitude 33° 22' 40" Nord
(Longitude 8° 59' 55" Est de Paris
1Official report, p. 177.
THE TAVIGNANO, CAMOUNA AND GAULOTS CASES 617
Apres cette poursuite, le Fulmine est revenu mouiller pres du Tcnrignano, en un point H que la Commission choisit comme centre d'un cercle d'incertitude d'un demi-mille de rayon.
B. Le Canopo a canonne la mahonne Gaulois alors que cette ma- honne se trouvait au point indique ci-dessus et que lui Canopo provenait, avec le cap au Nord, du point indique dans son rapport de mer par
Latitude 33° 20' 45" Nord Longitude 9° 00' 50" Est de Paris
et que la Commission adopte egalement comme centre d'un cercle d'incertitude d'un demi-mille de rayon.
La visite des deux mahonnes Cantouna et Gaulois par le Canopo a eu lieu en un point determine par
Latitude 33° 22' 00" Nord Longitude 9° OCX 25" Est de Paris
et qui est le centre d'un cercle d'incertitude d'un demi-mille de rayon. La Commission, apres sa visite sur les lieux, et a la suite de ses constatations dans les eaux de Zarzis, decide de s'en rapporter, pour 1'hydrographie, la configuration et la nature de la cote et des banes avoisinants, a la carte franchise du Service hydrographique N°. 4247. Elle rappelle que ses constatations ont fait Fob jet de son proces-verbal en date du 15 juillet 1912 et classe sous la cote 68.
Le President ayant donne lecture du present rapport a MM. les Commissaires, ce rapport et ses conclusions ont etc adoptes a 1'unanimite.
Fait a Malte, en trois exemplaires, le 23 juillet 1912.
Les Commissaires: GIUSEPPE GENOESE ZERBI SOMBORN SEGRAVE
Agreement for Inquiry, May 20,
Le Gouvernement de la Repu- II R. Governo italiano e il Go-
blique franchise et le Gouverne- verno della Repubblica Francese,
ment Royal italien, egalement mossi da egual desiderio di prov-
desireux de pourvoir au regie- vedere al regolamento delle diffi-
ment des difficultes auxquelles ont colta cui hanno dato luogo la cat-
donne lieu la capture et la saisie tura ed il sequestro temporaneo
momentane du vapeur postal f ran- del piroscafo post ale f rancese
cais Tavignano, le 25 Janvier 1912, Tavignano, il 25 gennaio 1912, da
par le batiment de la Marine parte della nave della R. Marina
^Official report, pp. 7,9.
618
ORIGINAL TEXTS
royale italienne Fulmine, ainsi que le tir effectue sur les mahonnes Camouna et Gaulois, le 25 Janvier 1912, par le torpilleur italien Canopo,
Ont resolu, conformement au titre III de la Convention de La Haye, du 18 octobre 1907, pour le reglement pacifique des conflits in- ternationaux, de confier a une Commission Internationale d'en- quete le soin d'elucider les circon- stances de fait dans lesquelles les- dites capture et saisie et ledit tir ont etc effectues.
Et sont, a cet effet, convenus des dispositions suivantes:
ARTICLE 1
Une Commission international d'enquete composee, comme il est dit ci-apres, est chargee de :
I. Rechercher, relever et pre- ciser le point geographique ou ont ete effectues: 1°. 1'arrestation du vapeur postal f ranqais Tavignano, par le batiment de la Marine royale italienne Fulmine, le 25 Janvier 1912; 2°. la poursuite des mahonnes Camouna et Gaulois, par le meme batiment, puis par le batiment de la Marine royale italienne Canopo et le tir effectue par ce dernier sur lesdites ma- honnes.
II. Preciser I'hydrographie, la configuration et la nature de la cote et des banes avoisinants, la distance entre eux des differents points que Tun ou 1'autre des Com- missaires jugeront utiles de rele- ver, et la distance de ces points a ceux ou se sont passes les f aits susvises.
III. Consigner dans un rapport ecrit le resultat de ses investiga- tions.
italiana Fulmine, ed il tiro ese- guito contro le maone Camouna e Gaulois, il 25 gennaio 1912, da parte della torpediniera italiana Canopo,
Hanno stabilito, in conformita del titolo III della Convenzione dell'Aja deir 18 ottobre 1907 per il regolamento pacifico dei con- flitti internazionali, di affidare ad una Commissione internazionale d'inchiesta il compito di chiarire le circostanze di fatto nelle quali la cattura, il sequestro ed il tiro pre- detti furono eseguiti;
E sono, a questo fine, convenuti delle disposizioni seguenti:
ARTICO-LO I
Una commissione internazionale d'inchiesta composta come sera detto in seguito, e incaricata di :
1) Cercare, rilevare e precisare il punto geografico in cui furono eseguiti: a) il fermo del piroscafo postale francese Tavignano da parte della nave della R. Marina italiana Fulmine, il 25 gennaio 1912; b) Tinseguimento delle maone Camouna e Gaulois da parte della medesima nave e poi della nave della R. Marina italiana Canopo f ed il tiro eseguito da quest 'ultima contro le maone sud- dette;
2) Precisare Tidrografia, la con- figurazione e la natura della costa e dei banchi adiacento, la distanza tra loro dei diversi punti che Tuno o Taltro dei commissari stimera utile di rilevare, e la distanza tra questi punti e quelli in cui sono accaduti i f atti sopra ennuciati ;
3) Conseguare in un rapporto scritto il resultato delle sue in- dagini.
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES
619
ARTICLE 2
La Commission Internationale d'enquete sera composee de trois Commissaires, dont deux seront des officiers des Marines nation- ales franchise et italienne, d'un grade au moins egal a celui de Capitaine de fregate. Le Gou- vernement de Sa Majeste britan- nique sera prie de choisir le troisieme Commissaire parmi ses officiers de marine d'un grade superieur ou plus anciens en grade. Celui-ci remplira les fonc- tions de president.
Deux secretaires seront charges de remplir les fonctions de gref- fiers de la Commission et d'assis- ter celle-ci dans ses operations, Tun etant designe par le Gou- vernement de la Republique f ran- gaise, et 1'autre par le Gouverne- ment royal italien.
ARTICOLO II
La commissione internazionale d'inchiesta sara composta di tre icommissari, due dei quali saranno ufficiali delle marine nazionali italiana e f rancese, di grado eguale almeno a quello di capitano di fregata. II Governo di Sua Maesta Britannica sara pregato di scegliere il terzo commissario tra i suoi ufficiali di Marina di grado superiore o piu anziani in grado. Quest'ultimo adempira le fun- zioni di presidente.
Due segretari, designati uno dal R. Governo Italiano, 1'altro dal Go- verno della Repubblica francese, saranno incaricati di adempiere le funzioni di cancellieri della Com- missione e di assisterla nei suoi atti.
ARTICLE 3
La Commission internationale d'enquete aura qualite pour s'en- tourer de tous renseignements, in- terroger et entendre tous temoins, examiner tous papiers de bord de Tun ou de 1'autre desdits navires, bailments et mahonnes, proceder, s'il y a lieu, aux sondages neces- saires, et en general recourir a tous moyens d'in formation propres a assurer la manifestation de la verite.
Les deux Gouvernements s'en- gagent a cet egard a fournier a la Commission, dans la plus large mesure qu'ils jugeront possible, tous les moyens et facilites et notamment les moyens de trans- port ltd permettant d'accomplir sa tache.
ARTICOLO III
La Commissione internazionale d'inchiesta avra veste per rac- cogliere qualsiasi informazione, interrogare ed ascoltare qualsiasi testimone, esaminare qualsiasi carta di bordo dell'una o dell'altra delle dette navi e maone, proce- dere occorrendo agli scandagli necessari, e, in generale, ricorrere a qualsiasi mezzo di indagine atto ad assicurare la manifestazione della verita.
I due Governi s'impegnano a questo riguardo di fornire alia Commissione, nella piu larga misura che stimeranno possibile, tutti i mezzi e le facilitazioni, e particolarmente i mezzi di tras- pprto, che le permettano di adem- piere il compito suo.
620
ORIGINAL TEXTS
ARTICLE 4
La Commission Internationale d'enquete se reunira a Malte aus- shot que f aire se pourra et aura la faculte de se deplacer conforme- ment a Particle 20 de la Conven- tion de La Haye, du 18 octobre 1907, pour le reglement pacifique des conflits internationaux.
ARTICLE 5
La langue franchise est la langue de la Commission Interna- tionale d'enquete; toutefois, dans leurs deliberations, les Commis- saires pourront faire usage de leur propre langue.
ARTICLE 6
Dans un delai qui n'excedera pas quinze jours, a dater de sa premiere reunion, la Commission Internationale d'enquete arretera les conclusions de son rapport et les communiquera a chacun des deux Gouvernements.
ARTICLE 7
Chaque Partie supportera ses propres f rais et une part egale des f rais de la Commission.
ARTICLE 8
Pour tout ce qui n'est pas prevu par la presente convention d'en- quete, et notamment pour la pro- cedure d'enquete, les dispositions de la Convention de La Haye, du 18 octobre 1907, pour le reglement pacifique des conflits internation- aux, seront applicables a la pre- sente Commission Internationale d'enquete.
Fait en double exemplaire, a Rome, le 20 mai 1912.
ARTICOLO IV
La Commissione internazionale d'inchiesta si riunira a Malta ap- pena sara possibile e avra facolta di spostarsi, conformemente all'ar- ticolo 20 della convenzione dell'- Aja del 18 ottobre 1907 per il regolamento pacifico dei confliti internazionali.
ARTICOLO V
La lingua francese e la lingua della Commissione internazionale d'inchiesta ; i commissari potranno tuttavia servirsi della propria nelle loro deliberazioni.
ARTICOLO VI
Entro un termine non maggiore di 15 giorni, a datare dalla sua prima riunione, la Commissione internazionale d'inchiesta deter- minera le conclusioni del suo rap- porto e le communichera a cias- cuna dei due governi.
ARTICOLO VII
Ciascuna parte sosterra le pro- prie spese e una quota eguale di quelle della commissione.
ARTICOLO VIII
Per tutto cio che non e prcve- duto dalla presente convenzione, saranno applicabili alia Commis- sione le disposizioni della Conven- zione dell'Aja del 18 ottobre 1907 per il regolamento pacifico dei conflitti internazionali.
Fatto in doppio esemplare, a Roma, il 20 maggio 1912. Signe: CAMILLE BARRERE
DI SAN GlULIANO
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES 621
Agreement of April 15, 1912, relative to the Arbitration of the "Tavignano" "Camouna" and "Gaulois" Cases1
Les Gouvernements frangais et italien decident de soumettre a une Commission Internationale d'enquete les questions de fait soulevees:
1°. Au sujet de la saisie du vapeur frangais Tarvignano par le tor- pilleur italien Fulmine, le 25 Janvier 1912 dans les parages de Ras- Zira;
2°. Au sujet des coups de canon tires par le torpilleur Canopo le meme jour et dans les memes parages sur les deux mahonnes tunisiennes Kamouna et Gaulois.
Apres que ladite Commission internationale aura termine son en- quete, le resultat en sera transmis s'il y a lieu au meme tribunal arbi- tral charge de statuer sur les affaires du Carthage et du Manouba, afin qu'il se prononce sur les questions de droit, qu'il etablisse les re- sponsabilites et qu'il determine les reparations morales et materielles qu'elles comporteraient.
Rome, le 15 avril 1912.
Signer CAMILLE BARRERE
DI SAN GlULIANO
Compromis of Arbitration, November 8,
Le Gouvernement de la Republique Franchise et le Gouvernement Royal Italien s'etant mis d'accord le 15 avril 1912,
1°. Pour soumettre a une Commission internationale d'enquete les questions de fait soulevees au sujet de la saisie du vapeur franc.ais Tavignano par le torpilleur italien Fulmine, le 25 Janvier 1912, dans les parages de Ras-Zira et au sujet des coups de canon tires par le torpilleur italien Canopo, le meme jour et dans les memes parages, sur les deux mahonnes tunisiennes Kamouna et Gaulois;
2°. Pour transmettre, s'il y avait lieu, le resultat de 1'enquete au Tribunal arbitral charge de statuer sur les affaires du Carthage et du Manouba, afin qu'il se prononce sur les questions de droit, qu'il etablisse les responsabilites et qu'il determine les reparations morales et materielles qu'elles comporteraient,
Ayant pris connaissance du rapport presente le 23 juillet 1912 par ladite Commission Internationale d'enquete,
Les soussignes, dument autorises a cet effet, sont convenus du Com- promis suivant:
ARTICLE ler
Le Tribunal arbitral charge de statuer sur les affaires du Carthage et du Manouba est aussi charge de statuer sur les incidents concernant la saisie du vapeur frangais Tavignano et les coups de canon tires sur les mahonnes tunisiennes, afin de se prononcer sur les questions de
iQfficial report, Memoire of the French Republic, p. 5, note 1. *Ibid.t p. 5.
622 ORIGINAL TEXTS
droit, d'etablir les responsabilites et de determiner les reparations morales et materielles qu'elles comporteraient.
ARTICLE 2
Pour ce qui concerne les questions de fait soulevees par les deux incidents, le Tribunal arbitral devra faire etat du rapport presente par la Commission international d'enquete le 23 juillet 1912, ainsi que des proces-verbaux de ladite Commission.
Ledit rapport et lesdits proces-verbaux seront imprimes a frais communs par les soins des Parties et dans le plus bref delai possible.
ARTICLE 3
A la date du 15 Janvier 1913, chaque Partie deposera au Bureau de la Cour Permanente d'arbitrage quinze exemplaires de son memoire, avec les copies certifiees conformes de tous les documents et pieces qu'elle compte invoquer dans la cause.
Le Bureau en assurera sans retard la transmission aux arbitres et aux Parties, savoir deux exemplaires pour chaque arbitre, trois exem- plaires pour la Partie adverse; deux exemplaires resteront dans les archives du Bureau.
A la date du l*r mars 1913, chaque Partie deposera, dans les memes conditions que ci-dessus, son contre-memoire avec les pieces a 1'appui et ses conclusions finales.
Le Tribunal se reunira a La Have dans la seconde quinzaine de mars sur la convocation de son President.
ARTICLE 4
Pour tout ce qui n'est pas prevu par le present Compromis, les dispositions des Compromis du 6 mars 1912 et de 1'Accord du 4 avril 1912 seront applicables au present litige. Fait a Paris, le 8 novembre 1912.
Signer L. RENAULT Signe: G. FUSINATO
Agreement of May 2, iprj, Settling Definitively the "Tawignano" "Camouna" and "Gaulotf' Controversy*
Les deux affaires du "Carthage" et du "Manouba" etant sur le point d'etre reglees par jugement arbitral, le Gouvernement de la Republique franchise et le Gouvernement royal italien ont considere qu'un ar- rangement direct de Taffaire concernant le "Tavignano" et les deux mahonnes tunisiennes serait, par la nature meme de ce differend, par- ticulierement desirables. Les deux Gouvernements son d'autant plus disposes a entrer dans cette voie qu'elle leur offre une nouvelle occasion
1Copy furnished by the International Bureau of the Permanent Court of Arbitration.
THE TAVIGNANO, CAMOUNA AND GAULOIS CASES 623
de manifester 1'esprit de cordiale amitie qui les anime mutuellement. A cet egard, ils sont tombes d'accord qu'il serait equitable d'indemniser les particuliers a raison des dommages qu'ils ont soufferts. Le Gou- vernement royal italien s'etant declare pret a verser a cet effet la somme de cinq mille francs, le Gouvernement de la Republique fran- c.aise a declare qu'il Taccepte et qu'il considere cette affaire comme etant ainsi definitivement reglee.
Les soussignes ont constate Taccord de leurs Gouvernements par le present acte pour valoir ce que de droit.
Signe: L. RENAULT Signe: G. FUSINATO
INDEX
INDEX
PAGE
Abd-el-Kerlm ben Maneonr, Moroccan soldier, German Consulate at Casablanca,
Casablanca Case 113
Acevedo, Feliciano, as Minister of the Interior of Venezuela, signed Grell contract,
Orinoco Steamship Company Case 258,260
Adheeiong
Agreements for arbitration, Venezuelan Preferential Case
Belgium 64
France 64
Mexico 64
Netherlands 64
Spam 64
Sweden and Norway 64
United States 64
Hague Conventions for the pacific settlement of international disputes
1899 Convention . .... .... cii
1907 Convention . .... . cv
Agent*
Carthage Case
Fromageot, Henri, agent for France 331
Ricci-lhi'-atti, Arturo, agent for Italy 331
Casablanca Case
Lentze, Albrccht, agent for Germany 112
Weiss, Andre, agent for France 112
Grisbadarna Case
Johanssen, Kristen, agent for Norway 122
Montan, C O , agent for Sweden 122
Manouba Case
Fromageot, Henri, agent for France 344
Ricci-Rusatti, Arturo, agent for Italy 344
Russian Indemnity Case
Clunet, Jtdouard, agent for Turkey 299
Fromageot, Henri, agent for Russia 299
Savarkar Case
Crowe, Eyre, agent for Great Britain 277
Weiss, Andre", agent for France 277
"A*ordat," The. See "Carthage" Cane; "Manouba" Case.
Agreement** for arbitration. See also Convention!), protocols, treaties, etc. Canevaro Case
Agreement of April 25, 1910
English translation 294
Italian text 528
Spanish text 528
Supplementary notes of April 27, 1910
English translation 296
Spanish text 530
628 INDEX
PAGE
Carthage Case
Agreement of March 6, 1912
English translation 336
French text 561
Supplementary agreement of April 4, 1912
English translation 340
French text 563
Casablanca Case
Agreement of November 24, 1908
English translation 117
French text 484
Grisbadarna Case
Agreement of March 14, 1908
English translation 133
Norwegian text 496
Swedish text 496
Island of Timor Case
Agreement of April 3, 1913
English translation 387
French text 596
Japanese House Tax Case
Agreements of August 28, 1902
English text 85
French text 461
German text 457
Manouba Case
Agreement of March 6, 1912
English translation 351
French text 571
Supplementary agreement of April 4, 1912 (see Carthage Case)
English text 340
French text 563
Muscat Dhows Case
Agreement of October 13, 1904
English text 101
French text 471
Supplementary protocol of January 13, 1905
English text 108
French text 477
Supplementary protocol of May 19, 1905
English text 109
French text 477
North Atlantic Coast Fisheries Case
Agreement of January 27, 1909 147
Supplementary correspondence of January 27-March 4, 1909 215
Orinoco Steamship Company Case Agreement of February 13, 1909
English text 235
Spanish text 508
Pious Fund Case
Agreement of May 22, 1902
English text 7
Spanish text 432
Russian Indemnity Case
Agreement of July 22/August 4, 1910
English translation 324
French text 551
Savarkar Case Agreement of October 25, 1910
English text 280
French text 510
INDEX 629
PAGE
Supplementary notes of October 25, 1910
English note 282
French note
English translation 282
French text 520
Tavignano, Camouna and Gaulois Cases Agreement of November 8, 1912
English translation 419
French text 621
Venezuelan Preferential Case Agreement of May 7, 1903
English text 62
German text 445
Agreements for Inquiry
North Sea or Dogger Bank Case Agreement of November 12/25, 1904
English translation 410
French text 614
Supplementary protocol of November 12/25, 1904
English translation 412
French text 615
Tavignano, Camouna and Gaulots Cases Agreement of May 20, 1912
English translation 417
French text 617
Italian text 617
Ahmed Reehid Bey, arbitrator, Russian Indemnity Case 297, 299
"Aldebaran." The. See Russian Indemnity Case.
Alemany, Joseph 8., Archbishop of San Francisco, claimant, Pious Fund Case 7,48
Alvarez Calderon, Manuel, arbitrator, Canevaro Case 284, 286
, ThaddeuB, Bishop of Monterey, claimant, Pious Fund Case 7, 48, 53
i, Chandler P., as plenipotentiary of United States, signed agreement of July 20, 1912, North Atlantic Coast Fisheries Case 221,225
Anlage, Don Nicola* de, founder of the Pious Fund, Pious Fund Case 39
Annuities claimed by prelates of Roman Catholic Church of California, origin of
dispute in Pious Fund Case 2, 3, 6
Anzilottl, Dlonlsio
Counsel for Italy, before the tribunal
Carthage Case 331
Manouba Case 344
Appeal, cases on
Orinoco Steamship Company Case 226
Pious Fund Case 1
Arbitration agreements. See Agreements for arbitration.
Arbitrators
Canevaro Case
Alvarez Calder6n, Manuel, Peruvian appointee 284,286
Fusmato, Guido, Italian appointee 284,286
Renault, Louis, president of the tribunal 284,286,294
630 INDEX
PAGE
Carthage Case
Fusinato, Guido 329, 330, 340
Hammarskjold, Knut Hjalmar Leonard, president of the tribunal 329, 330, 331, 336, 340
Kriege, J 329, 331, 340
Renault, Louis 329, 331, 340
Taube, Baron Michel de 329,331,340
Casablanca Case
Fry, Sir Edward, French appointee 1 10, 111
Fusinato, Guido, German appointee 110, 111
Hammarskjold, Knut Hjalmar Leonard, umpire 1 10, 1 12, 1 17
Kriege, J., German appointee 110, 1 12
Renault, Louis, French appointee 110, 1 1 1
Grisbadarna Case
Beichmann, F. V. N., Norwegian appointee 121, 122
Hammarskjold, Knut Hjalmar Leonard, Swedish appointee 121, 122
Loeff, J. A., president of the tribunal 121, 122, 133
Island of Timor Case
Lardy, Charles £douard 354
Japanese House Tax Case
Gram, Gregers, umpire 77, 79, 84
Motono, Itchiro, Japanese appointee 77, 79, 85
Renault, Louis, French, German and British appointee 77,79,84
Manouba Case
Fusinato, Guido 342, 343
Hammarskjold, Knut Hjalmar Leonard, president of the tribunal 342,343,351
Kriege, J 342,343
Renault, Louis 342,343
Taube, Baron Michel de 342, 343
Muscat Dhows Case
Fuller, Melville, W., British appointee 93,95,101
Lammasch, H., umpire 93,95,101
Savornin Lehman, Jonkheer A. F. de, French appointee 93,95,101
North Atlantic Coast Fisheries Case
Drago, Luis Maria 142,155.193
Fitzpatrick, Sir Charles 142, 155, 193
Gray, George 142, 155, 193
Lammasch, H., president of the tribunal 142, 155, 193
Savornin Lohman, Jonkheer A. F. de 142,155,193
Orinoco Steamship Company Case
Beernaert, Auguste M. F 227,229
Lammasch, H., umpire 227, 229, 234
Quesada, Gonzalo de 227,229
Pious Fund Case
Asser, T. M. C., Mexican appointee 2, 4, 7
Fry, Sir Edward, United States appointee 2,3,7
Martens, F., United States appointee 2, 3, 7
Matzen, Henning, umpire and president of the tribunal 2, 4, 7
Savornin Lohman, Jonkheer A. F. de, Mexican appointee 2, 4, 7
Russian Indemnity Case
Ahmed Rechid Bey, Turkish appointee 297,299
Herante Abro Bey, Turkish appointee 297, 299
Lardy, Charles fidouard, umpire 297, 298, 323
Mandelstam, Andre, Russian appointee 297. 299
Taube, Baron Michel de, Russian appointee 297,298
Savarkar Case
Beernaert, Auguste M. F., president of the tribunal 275, 276
Desart, Lord 275, 276
Gram, Gregers 275,276
Renault, Louis 275,276
Savornin Lohman, Jonkheer A. F. de 275, 276
Tabular statement of 423
INDEX 631
PAGE
Venezuelan Preferential Case
Lammasch, H 56, 57, 61
Martens, F. 56, 57, 61
Mourawieff, N. V., president of the tribunal 56, 57, 61
Arco Valley, Count von, as plenipotentiary of Germany, signed agreement for arbitra- tion, Japanese House Tax Case 87
Aaeer, T. M. C., arbitrator, Pious Fund Case 2, 4, 7
Award*
Canevaro Case, May 3, 1912
English translation 285
French text 522
Carthage Case, May 6, 1913
English translation 330
French text 556
Casablanca Case, May 22, 1909
English translation Ill
J|rench text 479
Grisbadarna Case, October 23, 1909
English translation 122
French text 487
Island of Timor Case, June 25, 1914
English translation 355
French text 574
Japanese House Tax Case, May 22, 1905
English translation 78
French text 452
Manouba Case, May 6, 1913
English translation 342
French text 565
Muscat Dhows Case, August 8, 1905
English official translation 95
French text 467
North Atlantic Coast Fisheries Case, September 7, 1910 146
Orinoco Steamship Company Case
Award of Dr. Barge, umpire in original case before claims commission of 1903,
February 22, 1904 255
Award of the arbitral tribunal, October 25, 1910
English official translation 228
French text 504
Pious Fund Case
Award of Sir Edward Thornton, umpire in original case before claims commission
of 1868, November 11, 1875 48
Revision of, October 24, 1876 53
Award of the arbitral tribunal, October 14, 1902
English translation 3
French text 429
Russian Indemnity Case, November 11, 1912
English translation 298
French text 532
Savarkar Case, February 24, 1911
English text 276
French text 516
Tabular statement of 423
Venezuelan Preferential Case, February 22, 1904
English text 56
French text 441
632 INDEX
PACK
Azpiroz, Manuel de
As plenipotentiary of Mexico, signed agreement for arbitration
Pious Fund Case 8, 12
Venezuelan Preferential Case 64
Bacon, Robert, signed American note of
February 21, 1909, North Atlantic Coast Fisheries Case 217
March 4, 1909, North Atlantic Coast Fisheries Case 219
Bainbridffe, William E., American commissioner, original Orinoco Steamship Com- pany Case, before claims commission of 1903, opinion 240
"Bakan," The. See North Sea or Dogger Bank Case.
Barge, Charles Angustinns Henri, umpire, original Orinoco Steamship Company
Case before claims commission of 1903 227, 230, 234, 236
Award, February 22, 1904 255
Barrere, Camille, as plenipotentiary of France, signed agreements for inquiry,
Tavignano, Camouna and Gaulois Cases 419
Beaumont, Admiral Iiewls, commissioner, North Sea or Dogger Bank Case 410
Beernaert, Auguste M. F.
Arbitrator, Orinoco Steamship Company Case 227, 229
President of the tribunal, Savarkar Case 275, 276
Belehmann, F. V. N., arbitrator, Grisbadarna Case 121, 122
Belgium
Arbitration: Venezuelan Preferential Case (Belgium, Venezuela et al. vs. Ger- many, Great Britain and Italy) 55
Ben*, Walter, deserter from the French Foreign Legion at Casablanca, Casablanca
Case 11*
Blockade of Venezuelan ports. See Venezuelan Preferential Case.
Bolognesi, Count Giulio, signed, for Italy,
Agreement for arbitration, Canevaro Case 294, 295
Note of April 27, 1910, Canevaro Case 296
Borja, Dona Maria de, founder of the Pious Fund, Pious Fund Case 39
Bostrtfm, E. G., Swedish member. Joint Norwegian and Swedish State Council to
consider protocol of March 15, 1904, Grisbadarna Case 136
Boundary arbitrations
Grisbadarna Case 121
Island of Timor Case 343
Boundary Commission of 1897, Maritime. See Grlsbadarna Case.
Bowen, Herbert W., as plenipotentiary of Venezuela, signed
Agreement for arbitration, Venezuelan Preferential Case 62,64
Claims conventions of 1903, Venezuelan Preferential Case 65,67,68,70,73,74,76
Statement of January 23, 1903, Venezuelan Preferential Case note, 61
Brussels, General Act of July «, 1S90, for the suppression of African slave trade,
extract. Muscat Dhows Case 104
Bryce, James, signed
Agreement for arbitration, North Atlantic Coast Fisheries Case 155
British note of
January 27, 1909, North Atlantic Coast Fisheries Case 217
March 4, 1909, North Atlantic Coast Fisheries Case 218
INDEX 633
PAGE
Buchanan, William I., as plenipotentiary of the United States, signed agreement for
arbitration, Orinoco Steamship Company Case 235.239
Caballero, Don Juan, founder of the Pious Fund, Pious Fund Case 39
Cambon, Jules
As plenipotentiary of France, signed
Agreement for arbitration, Casablanca Case 119
Protocol of November 10, 1908, Casablanca Case 120
Cambon, Paul, signed for France Agreement for arbitration
Muscat Dhows Case 102
Savarkar Case 282
Note of October 25, 1910, Savarkar Case 283
Supplementary agreements to the agreement for arbitration, Muscat Dhows Case. .. 108, 109
"Camouna" Cave. See "Tavlgnano," "Camouna" and "Gaulols" Cases.
Campinchf, C., secretary to the agent of Turkey before the tribunal, Russian In- demnity Case 299
Canevaro Case (Italy vs. Peru)
Agreement for arbitration, April 25, 1910
English translation 294
Italian text 528
Spanish text 528
Supplementary notes of April 27, 1910
English translation 296
Spanish text 530
Arbitrators
Alvarez Calderon. Manuel, Peruvian appointee 284,286
Fusinato, Guide, Italian appointee 284, 286
Renault, Louis, president of the tribunal 284, 286, 294
Award of the tribunal, May 3, 1912
English translation 285
Final conclusions 294
French text 522
Claimants
Canevaro Brothers 284.286,290,294
Nationality of 284,286,290
Counsel before the tribunal
Mesones, Manuel Maria, for Peru 286
Scialoja. Vittono, for Italy 286
Decree of Dictator Pierola of December 12, 1880 287
Firm of Jose Canevaro and Sons
Legal status of 287
Nationality of 287, 290, 292
Italian laws involved 287
Origin of claim 287.288
Peruvian laws involved 285,286,288,289,291
Questions before the tribunal 285, 295
Secretary general of the tribunal 294
Syllabus 284
Tribunal
Competence 295
Formation 296
Meeting 286
Procedure 295
Sessions 284
"Canope," The. See "Tavlgnano," "Camouna" and "Gaulols" Cases. Capitulations. See Muscat Dhows Case..
634 INDEX
PAGE
"Carthage" Case (France v». Italy)
Agents before the tribunal
Fromageot, Henri, for France 331
Ricci-Busatti, Arturo, for Italy 331
Agordat, seizure of the Carthage by the 333
Agreement for arbitration, March 6, 1912
English translation 336
French text 561
Supplementary agreement of April 4, 1912
English translation 340
French text 563
Arbitrators
Fusinato. Guido 329,330.340
Hammarskjold, Knut Hjalmar Leonard, president of the tribunal. .329, 330, 331, 336, 340
Kriege, J 329, 331, 340
Renault, Louis 329, 331, 340
Taube, Baron Michel de 329,331,340
Award of the tribunal, May 6, 1913
English translation 330
Final conclusions 336
French text 556
Carthage, seizure and detention of the 330,332-334
Claimants
Compagme Genfrale Transat {antique, owner of the Carthage 333
Duvall, owner of aeroplane 334
French citizens 332,335
Contentions
French 331
Italian 332
Continuous voyage, doctrine of 334
Contraband of war 333, 334
Counsel before the tribunal
Anzilotti, Dionisio, for Italy 331
Hesse, Andrl, for France 331
Declaration of London of 1909, Article 47 invoked 339
Flag of France, offense to 332, 335
Indemnity for damages 332, 335, 336
International law violated 332,335,336
Joint note of January 26, 1912
English translation 339
French text 562
Origin of dispute 329
Questions before the tribunal 330, 337
Secretaries of the tribunal
Roell, Jonkheer W 336
Verduynen, Michiels van 336
Syllabus 329
Tribunal
Competence 337, 338
Composition 330, 331, 337
Expenses 338, 340
Language 338
Meeting 331, 338
Procedure 337
Sessions 329
Visit and search, right of 333
Casablanca Case (France v«. Germany)
Agents before the tribunal
Lentze, Albrecht, for Germany 112
Weiss, Andr*, for France 112
INDEX 635
PAGE
Agreement for arbitration, November 24, 1908
English translation 117
French text 484
Arbitrators
Fry, Sir Edward. French appointee 110, 111
Fusinato, Guido, German appointee 110, 111
Hammarskjold, Knut Hjalmar Leonard, umpire 110,112,117
Kriege, J , German appointee 110, 112
Renault, Louis, French appointee 110, 111
Award of the tribunal, May 22, 1909
English translation Ill
Final conclusions 116
French text 479
Conclusions
French 112
German 113
Deserters from the French Foreign Legion at Casablanca
Arrest of 110,113
Nationality of 110, 113
Protection by the German Consulate 112
Safe conduct for 110, 115, 117
Extraterritorial jurisdiction in Morocco 110, 113-115
Military occupation of Casablanca 110, 112
Origin of dispute 110, 111
Questions before the tribunal Ill, 118
Regrets
Proems-verbal of May 29. 1909
English translation 120
French text 485
Protocol of November 10, 1908
English translation 119
French text 485
Secretary general of the tribunal, Michiels van Verduynen 117
Syllabus 110
Tribunal
Competence 119
Composition 118
Expenses 118
Language 119
Meeting 112,118
Procedure 118
Sessions 110
Charts. See Maps and chart**.
Claln
Alemany, Joseph S., Archbishop of San Francisco, Pious Fund Case 7,48
Amat, Thaddeus. Bishop of Monterey, Pious Fund Case 7, 48, 53
Canevaro Brothers, Canevaro Case 284,286,290,294
Compagme de Navigation M\xtc, Manouba Case 347
Compagme Generate Transatlantic, Carthage Case 333
Creditor Powers of Venezuela, Venezuelan Preferential Case 55,56
Duvall, Carthage Case 334
French citizens
Carthage Case 332, 335
Manottba Case 342, 345, 351
Tavignano, Camouna and Gaulois Cases 413
Orinoco Steamship Company, Orinoco Steamship Company Case 227,236
Russian citizens, Russian Indemnity Case 297, 300, 303, 304
636 INDEX
PAGE
Claim* arbitration*
Canevaro Case 284
Orinoco Steamship Company Case 226
Pious Fund Case 1
Russian Indemnity Case 297
Venezuelan Preferential Case 55
Claims commissions
British and Venezuelan Commission of 1903, Venezuelan Preferential Case 68
German and Venezuelan Commission of 1903, Venezuelan Preferential Case 66
Italian and Venezuelan Commission of 1903, Venezuelan Preferential Case 71,72
United States and Mexican Claims Commission of 1868, Pious Fund Case 13
United States and Venezuelan Claims Commission of 1866, Orinoco Steamship Com- pany Case 236
United States and Venezuelan Claims Commission of 1903
Orinoco Steamship Company Case (see Venezuelan Preferential Case) 230
Venezuelan Preferential Case 74, 75
Clunet, Adonard, agent for Turkey before the tribunal, Russian Indemnity Case 299
Commissioners
Grisbadarna Case, maritime boundary commission of 1897
Oldberg, E., Swedish appointee 137
Olsen, Hroar, Norwegian appointee 137
Rieck, A., Norwegian appointee 137
Westring, H. G., Swedish appointee 137
North Sea or Dogger Bank Case, Hague commission of inquiry
Beaumont, Admiral Lewis 410
Davis, Admiral Charles Henry 410
Doubassoff, Admiral 410
Fournier, Admiral 410
Spaum, Admiral 410
Orinoco Steamship Company Case, claims commission of 1903
Bainbridge, William E 240
Barge, Charles Augustinus Henri, umpire 227-230,234,236,255
Grisanti, Carlos F 243
Pious Fund Case, claims commission of 1868
Thornton, Sir Edward, umpire 1, 2, 4, 6, 48, 53
Wadsworth, William Henry 17
Zamacona, Manuel Maria de 22
Tavtgnano, Camouna and Gaulots Cases, Hague commission of inquiry
Segrave, Captain James 415
Sombron, Captain 415
Zerbi, Captain Guiseppe Genoese 415
Tabular statement of 423
Commissions. See Boundary commissions; Claims commissions; Fishery com- mission; Hague commissions of Inquiry.
"Compagnle de Navigation Mlxte," claimant, Manouba Case 347
"Compamle Gentrale Transatlantlqne," claimant. Carthage Case 333
"CompromU." See Agreements for arbitration.
"Continuous voyage" doctrine, Carthage Case 334
Contraband of war, Carthage Case 333, 334
INDEX 637
PACK
Conventions, protocols, treaties, etc. See also Agreement* for arbitration; Agreements for Inquiry.
1844, November 17, France-Iman of Muscat. Treaty of friendship and commerce, extract, Muscat Dhows Case
English translation 103
French text 473
1859, April 20, Netherlands- Portugal. Treaty relative to boundary possessions, Island of Timor Case
English translation 390
French text 599
1862, March 10, France-Great Britain. Declaration respecting independence of Sultans of Muscat and Zanzibar, Muscat Dhows Case
English translation 103
English text 103
1868, July 4, Mexico-United States. Claims convention, Pious Fund Case
English text 12
Spanish text 437
1890, July 2, General Act of Brussels for the suppression of African slave trade, extract, Muscat Dhows Case
English translation 104
French text 474
1893, June 10, Netherlands- Portugal. Convention of commerce, navigation, boun- daries, etc , Island of Timor Case
English translation 393
French text 601
1893, July 1, Netherlands-Portugal. Declaration regarding cession of territory. Island of Timor Case
English translation 395
French text 603
1894, July 16, Great Britain-Japan. Treaty of commerce and navigation, extract, Japanese House Tax Case 89
1896, April 4, Germany- Japan. Treaty of commerce and navigation, extract, Japanese House Tax Case
English translation 91
German text 464
1896, August 4, France- Japan. Treaty of commerce and navigation, extract, Japanese House Tax Case
English translation 92
French text 465
1899, July 29. Hague Convention for the pacific settlement of international disputes
Adhesions cii
English translation xxxiii
French text xxxii
Ratifications cii
Reservations ciii
1902, May 22, Mexico-United States. Protocol of arbitration. Pious Fund Case
English text 7
Spanish text 432
1902, August 28, France- Japan Protocol of arbitration, Japanese House Tax
Case notel, 85
French text 461
1902, August 28, Germany- Japan. Protocol of arbitration, Japanese House Tax
Case note 1, 85
German text 457
1902, August 28, Great Britain- Japan. Protocol of arbitration, Japanese House
Tax Case 85
1903, February 13, Germany-Venezuela. Claims convention, Venezuelan Preferential Case
English text 6=?
German text 447
1903, February 13, Great Britain- Venezuela. Claims convention, Venezuelan Prefer- ential Case 67
638 INDEX
PAGB
1903, February 13, Italy- Venezuela. Claims convention, Venezuelan Preferential Case 70 1903, February 17, United States-Venezuela. Claims convention, Venezuelan Prefer- ential Case
English text 74
Spanish text 449
1903, February 26, Mexico- Venezuela Claims convention, Venezuelan Preferential
Case note, 74
1903, February 27, France- Venezuela. Claims convention, Venezuelan Preferential
Case note, 74
1903, February 28, Netherlands-Venezuela. Claims convention, Venezuelan Prefer- ential Case note, 74
1903, March 7, Belgium-Venezuela. Claims convention, Venezuelan Preferential
Case note, 74
1903, March 10, Sweden and Norway- Venezuela. Claims convention, Venezuelan
Preferential Case note, 74
1903, April 2, Spain- Venezuela. Claims convention, Venezuelan Preferential
Case note, 74
1903, May 7, Germany-Venezuela. Protocol of arbitration, Venezuelan Preferential Case
Adhering Powers 64
English text 62
German text 445
1903, May 7, Great Britain-Venezuela. Protocol of arbitration, Venezuelan Prefer- ential Case note 1, 62
1903, May 7, Italy- Venezuela. Protocol of arbitration, Venezuelan Preferential Case note 1, 62
1904, March 15, Norway-Sweden. Protocol concerning Grisbadarna boundary
English translation 136
Swedish text 500
1904, October 1, Netherlands- Portugal. Convention for the settling of the boundary, Island of Timor Case
English translation 396
French text 604
1904, October 13, France-Great Britain. Agreement for arbitration, Muscat Dhows Case
English text 101
French text 471
1904, November 12/25, Great Britain-Russia. Declaration (agreement) for inquiry, North Sea or Dogger Bank Case
English translation 410
French text 614
1904, November 12/25, Great Britain-Russia. Supplementary protocol to declaration (agreement) for inquiry. North Sea or Dogger Bank Case
English translation 412
French text 615
1905, January 13, France-Great Britain. Supplementary protocol to agreement for arbitration, Muscat Dhows Case
English text 108
French text 477
1905, May 19, France-Great Britain. Supplementary protocol to agreement for arbitration, Muscat Dhows Case
English text 109
French text 477
1906, October 6/8, Great Britain-United States. Modus vwendi, North Atlantic Coast Fisheries Case 208
1907, September 4/6, Great Britain-United States. Modus vivendi, North Atlantic Coast Fisheries Case 212
" 1907, October 18. Hague Convention for the pacific settlement of international disputes
Adhesion cv
English translation xxxiii
INDEX 639
PAGE
French text xxxii
Ratifications civ
Reservations cv
Signatures cv
1908, March 14. Norway-Sweden. Agreement for arbitration, Grisbadarna Case
English translation 133
Norwegian text 496
Swedish text 496
1908, July 15/23, Great Britain-United States. Modus vivendi, North Atlantic
Coast Fisheries Case 214
1908, November 10, France-Germany. Protocol containing formula of regrets, Casa- blanca Case
English translation 119
French text 485
1908, November 24, France-Germany. Compromis of arbitration, Casablanca Case
English translation 117
French text 484
1909, January 27, Great Britain-United States. Agreement for arbitration, North Atlantic Coast Fisheries Case 147
1909, January 27/March 4, Great Britain-United States. Correspondence supple- mentary to agreement for arbitration 215
1909, February 13, United States-Venezuela. Agreement for arbitration, Orinoco Steamship Company Case
English text 235
Spanish text 508
1909, May 29, France-Germany Proems-verbal of regrets, Casablanca Case
English translation 120
French text 485
1909, July 22/September 8, Great Britain-United States. Modus vwendt. North Atlantic Coast Fisheries Case 220
1910, April 25, Italy-Peru. Protocol of arbitration, Canevaro Case
English translation 294
Italian text 528
Spanish text 528
1910, April 27, Italy-Peru. Notes concerning the formation of the arbitral tribunal, Canevaro Case
English translation 296
Spanish text 530
1910, July 22/August 4, Russia-Tvrkey. Compromvs of arbitration, Russian Indem- nity Case
English translation 324
French text 551
1910, October 25. France-Great Britain Agreement for arbitration, Savarkar Case
English text 280
French text 519
1910, October 25, France-Great Britain. Supplementary notes to the agreement for arbitration. Savarkar Case
English note 282
French note
English translation 282
French text 520
1912, January 26, France-Italy. Joint note concerning settlement of the Carthage and Manouba cases
English translation 339
French text 562
1912, March 6, France-Italy. Compromis of arbitration, Carthage Case
English translation 336
French text : 561
1912, March 6, France-Italy. Compromts of arbitration, Manouba Case
English translation 351
French text 571
640 INDEX
PAGE
1912, April 4, France-Italy. Supplementary agreement to the compromis of arbi- tration, Carthage and Manouba Cases
English translation 340
French text 563
1912, April 15, France-Italy. Preliminary agreement for inquiry and arbitration, Tavignano, Camouna and Gaulois Cases
English translation 419
French text 621
1912, May 20, France-Italy. Convention of inquiry, Tavignano, Camouna, and Gaulois Cases
English translation 417
French text 617
Italian text 617
1912, July 20, Great Britain-United States. Agreement adopting recommendations
in award, North Atlantic Coast Fisheries Case 221
1912, November 8, France-Italy. Compromis of arbitration, Tavignano, Camouna and Gaulois Cases
English translation 419
French text 621
1913, May 2, France-Italy. Agreement settling the Tavignano, Camouna, and Gaulois Cases
English translation 42]
French text 623
1913, April 3, Netherlands-Portugal. Compromis of arbitration, Island of Timor Case
English translation 387
French text 596
Counsel before the tribunals
Canevaro Case
Mesones, Manuel Maria, for Peru 286
Scialoja, Vittorio, for Italy 286
Carthage Case
Anzilotti, Dionisio, for Italy 331
Hesse, Andre, for France 331
Manouba Case
Anzilotti, Dionisio, for Italy 344
Hesse, Andre, for France 344
Russian Indemnity Case
Hesse, Andrf, for Turkey 299
Roguin, Ernest, for Turkey 299
Youssouf, Kemal Bey, for Turkey 299
Cowley, Lord, as plenipotentiary of Great Britain, signed declaration of March 10, 1862, between France and Great Britain respecting the independence of the Sultans of Muscat, Muscat Dhows Case 103
Crowe, Eyre, agent for Great Britain before the tribunal, Savarkar Case 277
Custom* receipt* of La Gualra and Puerto Cabello. See Venezuelan Preferential Cave.
Davis, Admiral Charles Henry, commissioner, North Sea or Dogger Bank Case 410
Declaration of London of 1909, Article 47 invoked in the Carthage Case 339
Declarations. See Convention*, protocols, treaties, etc.
Pieroto decree of December 12, 1880, Canevaro Case 287
INDEX 641
PACK
Venezuelan decrees, Orinoco Steamship Company Case
1893, July 1, Article 1 253
1900, October 5, Articles 1, 2 254,261
Desart, Lord, arbitrator, Savarkar Case 275, 276
Deserter* from the French Foreign Legion at Casablanca. See Casablanca Cave. Dhows. See Muscat Dhows Case.
Dissenting opinions
Japanese House Tax Case, opinion of Itchiro Motono 84
North Atlantic Coast Fisheries Case, opinion of Luis Maria Drago 193, 195
Dogger Bank Case. See North Sea or Dogger Bank Case.
Donbassoff, Admiral, commissioner, North Sea or Dogger Bank Case 410
Drago, JL.nl* Maria, arbitrator, North Atlantic Coast Fisheries Case 142, 155, 193
Dissenting opinion 195
Duball, G., as plenipotentiary of France, signed agreement for arbitration, Japanese
House Tax Case 87
Dnvall, claimant, Carthage Case 334
Extraterritorial Jurisdiction. See Casablanca Case; Japanese House Tax Case.
Ferrelra, Antonio Maria Bartholomeu, as plenipotentiary of Portugal, signed agree- ment for arbitration, Island of Timor Case 389
Fishery arbitration
North Atlantic Coast Fisheries Case 141
Fishery Commission, Permanent Mixed British-American. See North Atlantic Coast Fisheries Case.
Fishing- fleet from Hull. See North Sea or Dogger Bank Case.
Fitzpatrick, Sir Charles, arbitrator. North Atlantic Coast Fisheries Case. ...142,155,193
Flag, offense to. See "Carthage" Case; "Manouba" Case.
Flag of France, right of Muscat Dhows to fly 93-95, 101
Fontes Pereira de Mello, A. M. de, as plenipotentiary of Portugal, signed agree- ment of April 20, 1859, Island of Timor Case 393
Foreign Legion of France, deserters from. See Casablanca Case.
Foreign settlements In Japan. See Japanese House Tax Case.
Forres de Rada, Marchioness de, founder of the Pious Fund, Pious Fund Case... 39
Founder, Admiral, commissioner, North Sea or Dogger Bank Case 410
France
Arbitrations
Carthage Case (France vs. Italy) 229
Casablanca Case (France vs. Germany) 110
Japanese House Tax Case (France, Germany and Great Britain vs. Japan) 77
Manouba Case (France vs. Italy) 341
Muscat Dhows Case (France vs. Great Britain) 93
Savarkar Case (France vs. Great Britain) 275
642 INDEX
PACK
Cases before Hague commission of inquiry: Tavignano, Camouna and Gaulois Cases
(France vs Italy) 413
Civil code, Article 1690, Orinoco Steamship Company Case 250
Fromageot, Henri, agent before the tribunal
Carthage Case, for France 331
Manouba Case, for France 344
Russian Indemnity Case, for Russia 299
Fry, Sir Edward, arbitrator
Casablanca Case 110, 111
Pious Fund Case 2, 3, 7
Fuller, Melville W., arbitrator, Muscat Dhows Case 93, 95, 101
"Fulmlne," The. See "Tavlgnano," "Camouna" and "Ganlois" Case*.
Fnslnato, Guide
Arbitrator
Cancvaro Case 284,286
Carthage Case 329, 330, 340
Casablanca Case 110, 111
Manouba Case 342, 343
As plenipotentiary of Italy, signed Agreement for arbitration
Carthage Case 338
Manouba Case 353
Tavignano, Camouna and Gaulois Cases 421
Definitive agreement of May 2, 1913, Tavignano, Camouna and Gaulois Cases 421
Ganteanme, Edgar Peter, attorney for Ellis Grell to sign concessions contract,
Orinoco Steamship Company Case 258,260
"Gaulois" Case. See "Tavlarnano," "Camouna" and "Ganlois" Cases.
Geneva Convention of 1906. Article 9 invoked in the Manouba Case 341, 345
Arbitrations
Casablanca Case (Germany vs. France) 110
Japanese House Tax Case (Germany, France and Great Britain rs. Japan) 77
Venezuelan Preferential Case (Germany, Great Britain and Italy rs Venezuela
et al.) 55
Glaeomette, representative of firm of Jos£ Canevaro and Sons, Canevaro Case 288
Glnllano, dt San, as plenipotentiary of Italy, signed agreements for inquiry, Tavig- nano, Camouna and Gaulois Cases 419
Gonsales Gutnan, Francisco, as plenipotentiary of Venezuela, signed agreement for
arbitration, Orinoco Steamship Company Case 235,236,239
Gorst, K., signed, for Great Britain, modus vwendi of October 6/8, 1906, North
Atlantic Coast Fisheries Case 209
Gram, Grocers
Arbitrator, Savarkar Case 275, 276
Umpire, Japanese House Tax Case 77,79,84
Gray, George, arbitrator, North Atlantic Coast Fisheries Case 142, 155, 193
INDEX 643
PACK
Great Britain
Arbitrations
Japanese House Tax Case (Great Britain, France and Germany vs. Japan) 77
Muscat Dhows Case (Great Britain vs. France) 93
North Atlantic Coast Fisheries Case (Great Britain vs. United States) 141
Savarkar Case (Great Britain vs. France) 275
Venezuelan Preferential Case (Great Britain, Germany and Italy vs. Venezuela
et al.) 55
Case before Hague commission of inquiry: North Sea or Dogger Bank Case (Great
Britain vs. Russia) 403
Orell concision. See Orinoco Steamship Company Case.
Grey, Sir Edward, signed, for Great Britain
Agreement for arbitration, Savarkar Case 282
Modus vwendi of
1907, September 4/6, North Atlantic Coast Fisheries Case 213
1908, July 15/23, North Atlantic Coast Fisheries Case 214
1909, July 22/September 8, North Atlantic Coast Fisheries Case 220
Note of October 25, 1910, Savarkar Case 282
Grlsantl, Carton F., Venezuelan commissioner, original Orinoco Steamship Company
Case before claims commission of 1903, opinion 243
Grtobadarna Cage (Norway vs. Sweden)
Agents before the tribunal
Johanssen, Kristen, for Norway 122
Montan, C. O, for Sweden 122
Agreement for arbitration, March 14, 1908
English translation 133
Norwegian text 496
Swedish text 496
Arbitrators
Beichmann, F V N, Norwegian appointee 121,122
Hammarskjold. Knut Iljalmar Leonard, Swedish appointee 121,122
Loeff, J. A , president of the tribunal 121, 122, 133
Award of the tribunal, October 23, 1909
English translation 122
Final conclusions 132
French text 487
Boundary commission of 1897, maritime Commissioners
Oldberg, E., Swedish appointee 137
Olsen, Hroar, Norwegian appointee 137
Rieck, A., Norwegian appointee 137
Westring, H. G., Swedish appointee 137
Disagreed 138
Norwegian view-point 138
Swedish view-point 138
Charts opposite 140
Conclusions
Norwegian 123
Swedish 123
Fisheries in the shoals of Gri&badarna 130, 134
Light-boat installation and maintenance by Sweden 130, 131, 135
Origin of dispute 121
Questions before the tribunal 122, 123, 133
Roskilde, peace of, 1658, maritime territory divided by 127, 136
Royal Resolution of March 26, 1904, with accompanying protocol of March 15, 1904, concerning the maritime boundary between Norway and Sweden
English translation 136
Swedish text 500
644 INDEX
FAGX
Secretaries of the tribunal
Roell, Jonkheer W 133
Verduynen, Michiels van 133
Syllabus 121
Tribunal
Competence 134
Composition 133
Expenses 133
Language 135
Meeting 135
Procedure 135
Sessions 121
Hagerup, O. F.» Norwegian member. Joint Norwegian and Swedish State Council to
consider protocol of March 15, 1904, Grisbadarna Case 136
Hague commissions of Inquiry, cases before
North Sea or Dogger Bank Case 403
Tavignano, Camouna and Gaulois Cases 413
Hague Convention of 1907 relative to certain restrictions on the right of cap- ture In maritime war. Article 2 invoked in the Manouba Case 341, 345
Hague Conventions for the pacific settlement of international disputes
1899 Convention
Adhesions en
English translation xxxin
French text xxxii
Ratifications cii
Reservations cm
1907 Convention
Adhesion cv
English translation xxxiii
French text xxxii
Ratifications civ
Reservations cv
Signatures cv
HammarnkjBld, Knut Hjalmar Leonard
Arbitrator, Grisbadarna Case 121 , 122
President of the tribunal
Carthage Case 329,330,331,336,340
Manouba Case 342,343,351
Umpire, Casablanca Case 110, 112, 1 17
Hardinge, Charles, as plenipotentiary of Great Britain, signed
Agreement for inquiry, North Sea or Dogger Bank Case 412
Protocol of November 12/25, 1904, North Sea or Dogger Bank Case 412
Mange, H. M., Norwegian member, Joint Norwegian and Swedish State Council to
consider protocol of March 15, 1904, Grisbadarna Case 136
Hay, John, as plenipotentiary of United States, signed
Agreement for arbitration, Pious Fund Case 8, 12
Claims convention of February 17, 1903, Venezuelan Preferential Case 74,76
Heeckeren, Carel ran, as plenipotentiary of the Netherlands, signed
Agreement of June 10, 1893, Island of Timor Case 395
Declaration of July 1, 1893, Island of Timor Case 396
Helnneman, Helnrlch, deserter from French Foreign Legion at Casablanca, Casa- blanca Case 113
INDEX 645
PACK
Heldewier, M.,as plenipotentiary of the Netherlands, signed agreement of April 20,
1859, Island of Timor Case 393
Herante Abro Bey, arbitrator, Russian Indemnity Case 297, 299
Herbert, Sir Michael H.,as plenipotentiary of Great Britain, signed claims conven- tion of February 13, 1903, Venezuelan Preferential Case 67, 70
Hesse, Andre*, council before the tribunal
Carthage Case, for France 331
Manouba Case, for France 344
Russian Indemnity Case, for Turkey 299
Hoek, P. P. C., appointed by the tribunal in North Atlantic Coast Fisheries Case as
member of the Permanent Mixed Fishery Commission 173
House tax. See Japanese Honae Tax Case.
Hull Incident. See North Sea or Do**er Bank Case.
Ibaen, 8., Norwegian member. Joint Norwegian and Swedish State Council to consider
protocol of March 15, 1904, Grisbadarna Case 136
Idenburg, A. W. F., as plenipotentiary of the Netherlands, signed agreement of Oc- tober 1, 1904, Island of Timor Case 400
Indemnities. See "Carthage" Cane; "Manouba" Case; Russian Indemnity Case; "Tavignano," "Camouna" and "Oaulols" Case*.
Indemnity arbitration
Russian Indemnity Case 297
Inquiry, agreements for. See Agreements for Inquiry.
Innea, Alfred Mitchell, as plenipotentiary of Great Britain, signed agreement of July
20, 1912, North Atlantic Coast Fisheries Case 221, 225
International law
Bays, creeks, harbors, etc, limits of, North Atlantic Coast Fisheries Case. .145, 181 et seq
Blockade, Venezuelan Preferential Caj.e 55
Capitulations, Muscat Dhows Case 93,99
Co-domimum, North Atlantic Coast Fisheries Case 167
Continuous voyage, Carthage Case 334
Contraband of war, Carthage Case 333,334
Declaration of London, Carthage Case 339
Extraterritorial jurisdiction
Casablanca Case 110,113-115
Japanese House Tax Case 77
Geneva Convention of 1906, Manouba Case 341, 345
Hague Convention of 1907 relative to certain restrictions on the right of capture in
maritime war, Manouba Case 341, 345
International servitude, North Atlantic Coast Fisheries Case 159
Territorial jurisdiction in regard to bays, North Atlantic Coast Fisheries Case 185
Three-mile rule, North Atlantic Coast Fisheries Case 181 et seq.
Visit and search
Carthage Case 333
Manouba Case 346,347
Island of Timor Caee (Netherlands vs. Portugal)
Agreement for arbitration, April 3, 1913
English translation 387
French text 596
646 INDEX
PAGX
Agreements, other 1859, April 20
English translation 390
French text 599
1893, June 10
English translation 393
French text 601
1893, July 1
English translation 395
French text 603
1904, October 1
English translation 396
French text 664
Intent of parties 361, 366
Arbitrator, sole, Charles fidouard Lardy 354
Appointed by the President of the Swiss Confederation 38?
Area of Island 355
Arguments
Netherland 361
Portuguese 360
Award, June 25, 1914
English translation 355
Final conclusions 385
French text 574
Boundaries
History 355
Of 1859 356, 362, 379, 390
Of 1899 360,362
Of 1904 357,380,397
Boundary commission of 1898-99 356 ** seq.
Conference of June 23/July 3, 1902 367, 370
Enclaves to be abolished 354, 356, 380, 393
Expenses 385
Inhabitants of Island 355
Language of the arbitrator 388
Law applicable 365
Maps opposite 386
Origin of dispute 354,357
Population of Island 355
Procedure 389
Questions before the arbitrator 387
Syllabus 354
Italy
Arbitrations
Canevaro Case (Italy vs. Peru) 284
Carthage Case (Italy vs. France) 229
Manouba Case (Italy vs. France) 341
Venezuelan Preferential Case (Italy, Germany and Great Britain -vs. Venezuela
et al.) 55
Cases before Hague commission of inquiry: Tavtgnano, Camouna and Gaulots Cases
(Italy vs. France) 413
Arbitration: Japanese House Tax Case (Japan vs. France, Germany and Great
Britain) 77
Japanese House Tax Caae (France, Germany and Great Britain v». Japan) Agreement for arbitration, August 28, 1902, between
France and Japan, French text 461
Germany and Japan, German text 457
~ " - ... 85
INDEX 647
Agreements, other
1894, July 16, agreement between Great Britain and Japan, extract 89
1896, April 4, agreement between Germany and Japan, extract
English translation 91
German text 464
1896, August 4, agreement between France and Japan, extract
English translation 92
French text 465
Arbitrators
Gram, Gregers, umpire 77, 79, 84
Motono, Itchiro, Japanese appointee 77, 79, 85
Renault, Louis, British, French and German appointee 77, 79, 84
Award of the tribunal
Dissenting opinion of Itchiro Motono 84
English translation 78
Final conclusions 84
French text 452
Claims (contentions)
British, French and German 80
Japanese 80
Concessions of Japan to foreigners 77
Exemption from taxation 77,80-84,87
Extraterritorial jurisdiction 77
Foreign settlements in Japan 80
Leases in perpetuity of
Buildings 81
Land 77,80
Origin of dispute 77, 85
Question before the tribunal 79, 87
Syllabus 77
Tribunal
Composition 87
Meeting 89
Procedure 88
Sessions 77
Japanese torpedo boats. See North Sea or Donrer Bank Case.
Johansson, Kristen, agent for Norway before the tribunal, Grisbadarna Case 122
Jurisdiction
Conflict of. See Casablanca Case.
Extraterritorial. See Japanese House Tax Case.
Of Sultan of Muscat. See Muscat Dhows Case.
Territorial, in regard to bays. See North Atlantic Coast Fisheries Case.
Jnst, Chancellor, German Consulate at Casablanca, Casablanca Case 113
Klderlen, Alfred Ton, as plenipotentiary of Germany, signed
Agreement for arbitration, Casablanca Case 119
Protocol of November 10, 1908, Casablanca Case 120
Klldal, B., Norwegian member, Joint Norwegian and Swedish State Council to con- sider protocol of March 15, 1904, Grisbadarna Case 136
Komnra, Jntaro, as plenipotentiary of Japan, signed agreements for arbitration,
Japanese House Tax Case 87,89
Krieg-e, J., arbitrator
Carthage Case 329,331,340
Casablanca Case 1 10, 11 2
Manouba Case 342, 343
648 INDEX
PACK
Lafferhelm, C. H. Th. A. de. Swedish member, Joint Norwegian and Swedish State
Council to consider protocol of March 15, 1904, Grisbadarna Case 136
La Gnaira customs receipts. See Venezuelan Preferential Case.
h, H.
Arbitrator, Venezuelan Preferential Case 56, 57, 61
President of the tribunal, North Atlantic Coast Fisheries Case 142, 155, 193
Umpire
Muscat Dhows Case 93, 95, 101
Orinoco Steamship Company Case 227, 229, 234
LamsdorfT, Count, as plenipotentiary of Russia, signed
Agreement for inquiry, North Sea or Dogger Bank Case 412
Protocol of November 12/25, 1904, North Sea or Dogger Bank Case 412
Lansdowne, Lord, as plenipotentiary of Great Britain, signed
Agreement for arbitration, Muscat Dhows Case 102
Supplementary agreements to the agreement for arbitration, Muscat Dhows Case. .108, 109
Lardy, Charles ftdonard
Sole arbitrator. Island of Timor Case 354
Umpire, Russian Indemnity Case 297, 298, 323
Law, International. See International law.
Leaftes in perpetuity. See Japanese House Tax Case.
Lentse, Albrecht, agent for Germany before the tribunal, Casablanca Case 112
Loeff, J. A., president of the tribunal, Grisbadarna Case 121, 122, 133
London, Declaration of. See Declaration of London.
Luyando, Juan Maria de, founder of the Pious Fund, Pious Fund Case 39
Lynden, Baron Molvil de, as plenipotentiary of the Netherlands, signed treaty of
October 1, 1904, Island of Timor Case 400
MacDonald, Claude M., as plenipotentiary of Great Britain, signed agreement for
arbitration, Japanese House Tax Case 87, 89
Mahones, Tunisian. See "Tavl*nano," "Camouna" and "GauloU" Cases.
Mallet, Louis, signed for Great Britain, modus vtvendt of July 15/23, 1908, North
Atlantic Coast Fisheries Case 214
Mandelstam, Andr*, arbitrator, Russian Indemnity Case 297, 299
"Manouba" Case (France vs. Italy)
Agents before the tribunal
Fromageot, Henri, for France 344
Ricci-Busatti, Arturo, for Italy 344
Agordat, seizure of the Manouba by the 347, 348
Agreement for arbitration, March 6, 1912
English translation 351
French text 571
Supplementary agreement of April 4, 1912. (See "Carthage" Case.)
English translation 340
French text 563
Arbitrators
Fusinato, Guido 342, 343
Hammarskjold, Knut Hjalmar Leonard, president of the tribunal 342,343,351
Kriege, J 342, 343
Renault, Louis 342, 343
Taube, Baron Michel de 342,343
INDEX 649
FACE
Award of the tribunal, May 6, 1913
English translation 342
Final conclusions 350
French text 365
Compagnie de Navigation Mixte, owner of the Manouba, claimant 347
Claims of
French Government 344, 345
Italian Government 346
Private citizens (French) 342,345,351
Conclusions (demands)
French 344, 349
Italian 345, 349
Conventional engagements, violations of 341, 345
Counsel before the tribunal
Anzilotti, Diomsio, for Italy 344
Hesse, Andre, for France 344
Flag of France, offense to 341,344,349
Geneva Convention of 1906, violation of 341, 345
Hague Convention of 1907 relative to certain restrictions on the right of capture
in maritime war, violation of 341, 345
Indemnity for damages 341,344,345,351
Joint note of January 26, 1912 (See "Carthare" Case.)
English translation 339
French text 562
Manouba, seizure and detention of the 341-353
Ottoman passengers on hoard the Manouba, arrest of 343,345,347,348,351,352
Questions before the tribunal 343, 352
Secretaries of the tribunal
Roell, Jonkheer W 351
Verduynen, Michiels van . . 351
Syllabus 341
Tribunal
Competence 352, 353
Composition 343, 352
Expenses 352
Language 353
Meeting 344,353
Procedure 352
Sessions 342
Visit and search, right of 346. 347
Maps and charts
Grisbadarna Case opposite 140
Island of Timor Case " 386
North Atlantic Coast Fisheries Case " 194
Tavignano, Camouna and Gaulois Cases " 416
Maritime boundaries. See Grlsbadarna Case.
Marten*, F., arbitrator
Pious Fund Case 2, 3, 7
Venezuelan Preferential Case 56,57,61
Mathieaen, C. P., Norwegian member, Joint Norwegian and Swedish State Council
to consider protocol of March 15, 1904, Grisbadarna Case 136
MatEen, Kenning, president of the tribunal and umpire, Pious Fund Case 2,4,7
Memoranda
American memorandum of September 12, 1906, North Atlantic Coast Fisheries Case. 209 British memorandum of September 25, 1906, North Atlantic Coast Fisheries Case. 210
650 INDEX
PAGE
Mesones, Manuel Maria, counsel for Peru before the tribunal, Canevaro Case 286
Meyer, Julius, deserter from the French Foreign Legion at Casablanca, Casablanca
Case 113
Mexico
Arbitrations
Pious Fund Case (Mexico vs. United States) 1
Venezuelan Preferential Case (Mexico, Venezuela et al. vs. Germany. Great
Britain and Italy) 55
Military occupation of Casablanca. See Casablanca Case. "Modus Vivendi." See Convention*, protocols, treaties, etc.
Montan, C. O., agent for Sweden before the tribunal, Grisbadarna Case 122
"Morea," The. See Savarkar Case.
Motono, Itchlro, arbitrator, Japanese House Tax Case 77, 79
Dissenting opinion of 84
Mourawieff, Nicola* V., president of the tribunal. Venezuelan Preferential Case. . .56, 57, 61
Muscat Dhows Case (France vs. Great Britain)
Agent to represent each party before the tribunal 102
Agreement for arbitration, October 13, 1904
English text 101
French text 471
Supplementary protocol of January 13, 1905
English text 108
French text 477
May 19, 1905
English text 109
French text 477
Agreements, other
1844, November 17, agreement between France and the Iman of Muscat
English translation 103
French text 473
1862, March 10. declaration between France and Great Britain respecting the inde- pendence of the Sultans of Muscat
English translation 103
French text 473
1890, July 2, General Act of Brussels for the suppression of the African slave trade
English translation 104
French text ¥. 474
Arbitrators
Fuller, Melville W., British appointee 93, 95, 101
Lammasch, H., umpire 93, 95, 101
Savornin Lohman, Jonkheer A. F. de, French appointee 93. 95, 101
Award of the tribunal, August 8, 1905
English official translation 95
Final conclusions 99, 100
French text 467
Capitulations 93, 99
Flag of France, right of Muscat Dhows to fly 93-95, 101
Jurisdiction of the Sultan of Muscat 94
Origin of dispute 93
Ottoman laws involved 97
INDEX 651
PAGE
Questions before the tribunal 95
Syllabus 93
Tribunal
Composition 101
Meeting 102
Procedure 102
Sessions 93
Netherlands, the
Arbitrations
Island of Timor Case (Netherlands vs. Portugal) 354
Venezuelan Preferential Case (Netherlands, Venezuela et ml. vs. Germany, Great
Britain and Italy) 55
North Atlantic Coast Fisheries Case (Great Britain vs. United States)
Agents of the parties before the tribunal 153, 155
Agreement for arbitration, January 27, 1909 147
Supplementary correspondence of January 27/March 4, 1909 215
Agreements, other
1818, October 20, Article 1 141, 147
1906, October 6/8, modus vwendi 208
1907, September 4/6, modus vwend% 212
1908, July 15/23, modus vwendi 214
1909, July 22/September 8, modus vwendi 220
1912, July 20, agreement adopting recommendations in the award 221
Arbitrators
Drago, Luis Maria 142.155,193
Fitzpatrick, Sir Charles 142,155,193
Gray, Gteorge 142,155,193
Lammasch, H., president of the tribunal 142, 155, 193
Savornin Lohman, Jonkheer A. F. de 142, 155, 193
Award of the tribunal, September 7, 1910 146
Dissent of Luis M. Drago on question 5 193, 195
Final conclusions on Question
1 172
2 178
3 180
4 181
5 187
6 192
7 193
Recommendations to the parties 173, 174
Bays, creeks, harbors, etc., limits of 145, 161 et seq.
Co-dormnivm 167
Contentions
American, with regard to Question
1 156.158.159.162,164,165,166,167,168
2 176
5 181.182,183,185,186
6 190
British, with regard to Question
1 156
2 177
5 181
6 190
Counsel of the parties before the tribunal 153, 155
Dissenting opinion of Luis M. Drago on Question 5 195
Fishery commissions
British-American Commission
Duties ISO
Expenses 151
652 INDEX
PAGE
Members, expert specialists 1 50, 173
Permanent 176
Canadian Commission 175
Newfoundland Commission 175
Fishery regulations
British 161, 174
Canadian 174
Newfoundland 174
International servitude, doctrine of 159
Maps opposite 194
Memoranda
American memorandum of September 12, 1906 209
British memorandum of September 25, 1906 210
Origin of dispute 141
Questions before the tribunal
1. Common rights and liberties in fisheries; justification of the parties 142,148,156
2. Rights of United States inhabitants to employ persons not inhabitants of the
United States 144, 149, 176
3. Liberties of United States inhabitants to be curtailed by payment of harbor
or other dues, etc 144, 149, 178
4. Restrictions of privileges of United States inhabitants with regard to shelter,
repairs, etc 144.149,180
5. Limits of bays, creeks, harbors, etc 145, 150, 181
6 Liberty of United States inhabitants to fish off coasts of southern or northern
Newfoundland or Magdalen Islands 146. 150. 190
7 Commercial privileges of United States fishing vessel* on treaty coasts 146, 150, 192
Resolution of the United States Senate of February 18, 1909 219
Territorial jurisdiction in regard to bays 185
Three-mile rule 181 et seq
Syllabus 141
Tribunal
Competence 148
Composition 151
Language 154
Meeting 153
Procedure 152
Recommendations to the parties 151, 173, 174
Sessions 142
North Sea or Dower Bank Cane (Great Britain TO. RiMhla)
Agreement for inquiry, November 12/25, 1904
English translation 410
French text 614
Supplementary protocol of November 12/25, 1904
English translation 412
French text 615
Aldebaran, the, Swedish vessel fired upon by vessel of the Russian squadron 405
Bakan, the, vessel which warned the Russian squadron of the proximity of Japanese
torpedo boats 404
Commissioners
Beaumont, Admiral Lewis 410
Davis, Admiral Charles Henry 410
Doubassoff,, Admiral 410
Fourmer, Admiral 410
Spaum, Admiral 410
Commission of inquiry
Composition 411
Expenses 412
Meeting 411
Procedure 411
Sessions 403
Dogger Bank, fishing ground of Hull trawlers note, 406
INDEX 653
PAGE
Hull fishing fleet
Location * 410
Mistaken for Japanese torpedo boats and fired upon by Russian squadron 407 et seq.
Damages 408, 410
Killed and wounded 408, 410
Naval regulations observed by 406
Vessels of the fleet 408
Japanese torpedo boats, rumors concerning 404
Questions before the commission 410
Report of the commis&ion, February 26, 1905
English translation 404
French text 609
Rojdestvensky, Admiral, commander in chief, Russian squadron 404
Orders of 404, 406, 407
Russian squadron
Coaling at Cape Skagen 404
Warned of proximity of Japanese torpedo boats 404
Set sail for Far East 405
Mistook Hull fishing vessels for Japanese torpedo boats and fired upon them. . . .407 et seq. Vessels of the squadron 405
Syllabus 403
Norway. See also Sweden and Norway.
Arbitration: Grisbadarna Case (Norway rs. Sweden) 121
Nnfiec, Jos£ R., signed additional articles of Grell concessions contract, Orinoco
Steamship Company Case 260
Oldberff, E., Swedish appointee, boundary commission of 1897, Grisbadarna Case.... 137 Olsen, Hroar, Norwegian appointee, boundary commission of 1897, Grisbadarna Case . 137
Opinions
Bainbridge, William E , in original Orinoco Steamship Company Case before claims
commission of 1903 240
Dissenting opinions
Drago, Luis M , on Question 5, North Atlantic Coast Fisheries Case 193, 195
Motono, Itchiro, Japanese House Tax Case 84
Grisanti, Carlos F., in original Orinoco Steamship Company Case before claims
commission of 1903 243
Wadsworth, William Henry, in original Pious Fund Case before claims commission
of 1868 17
Zamacona, Manuel Maria de, in original Pious Fund Case before claims commission
of 1868 22
Orinoco Steamship Company Case (United States vs. Venezuela)
Agreement for arbitration, February 13, 1909
English text 235
Spanish text 508
Arbitrators
Beernaert, Augustc M F 227,229
Lammasch, H.. umpire 227,229,234
Quesada, Gonzalo de 227, 229
Award of
Dr. Barge, in original case before claims commission of 1903, February 22, 1904. 255 Tribunal, October 25, 1910
English official translation 228
Final conclusions 234
French text 504
Civil codes
French code, Article 1690 250
Venezuelan code, Articles 1496, 1883, 1888 249,250
654 INDEX
PAGE
Claimant, the Orinoco Steamship Company 227, 236
Claims commission of
1866 236
1903 (see Venezuelan Preferential Case) 230
Commissioners
Bainbridge, William E 240
Barge, Charles Augustinus Henri, umpire 255
Grisanti, Carlos F 243
Claims convention of February 17, 1903 (see Venezuelan Preferential Case) 230
Decrees, Venezuelan
1893, July 1, Article 1 253
1900, October 5, Articles 1, 2 254, 261
Financial code, Venezuelan
Law xviii, Article 1 248
Law xxxiii, Articles 1,6, 12 249
Grell, Ellis, concessions contract between Venezuela and 258
Opinion in original case before claims commission of 1903 of
Bainbridge, William E 240
Grisanti, Carlos F 243
Origin of the claim 226
Orinoco River
Monopoly of navigation 253, 259
Annulled 254
Orinoco Shipping and Trading Company
Claims of 231, 232, 233, 234, 244, 256
Merged into the Orinoco Steamship Company 240
Possessor of Grell contract 241
Orinoco Steamship Company claims submitted to the
Claims commission of 1903 227
Tribunal for rerxamination 230, 236
Questions before the tribunal 229, 236
Secretary of the tribunal 234
Syllabus 226
Tribunal
Competence 227, 236
Composition 237
Expenses 238
Language 237
Meeting 239
Procedure 239
Sessions 227
Pacific settlement of International dlapntes. See Hague Convention*, etc.
Pefia. Dona Gertrudfo de la, founder of the Pieus Fund, Pious Fund Case 39
Peru
Arbitration Cancvjro Case ... . . 284
Peruvian laws. See Canevaro Cane.
Plerolo. Decree of, December 12, 1880. Canevaro Case 287
Pious Fund Case (Mexico vs. United States) Agreement for arbitration, May 22, 1902
English text 7
Spanish text 432
Annuities 2, 3. 6
Arbitrators
Aaser, T. M. C, Mexican appointee 2, 4, 7
Fry. Sir Edward, United States appointee 2,3,7
INDEX 655
FACE
Martens, F., United States appointee 2.3,7
Matzen, Hcnning, umpire and president of the tribunal 2, 4, 7
Savornin Lohsnan, Jonkheer A. F. de, Mexican appointee 2, 4, 7
Award of
Sir Edward Thornton, umpire in original case before claims commission of 1868,
November 11, 1875 48
Amendment 53
Tribunal, October 14, 1902
English translation 3
Final conclusions 6
French text 429
Claimants
Alemany, Joseph, Archbishop of San Francisco 7, 48
Amat, Thaddeus, Bishop of Monterey 7, 48, 53
Claims commission of 1868
Commissioners 13
Thornton, Sir Edward, umpire 1 , 2, 4, 6, 48, 53
Wadsworth, Willian Henry 17
Zamacona, Manuel Maria de 22
Claims convention of July 4, 1868
English text 12
Spanish text 437
Opinion in original case before claims commission of 1868 of
Wadsworth, William Henry 17
Zamacona, Manuel Maria de 22
Origin of claim 1
Pious Fund, founders of the
Aniage, Don Nicolas de 39
Borja, Dona Maria de 39
Caballero, Don Juan 39
Forres de Rada, Marchioness de 39
Luyando, Juan Maria de 39
Pefia, Dona Gertrudis de la 39
Velasco, Don Luis de 39
Villa Puente, Marquis de 39
Questions before the tribunal 2, 4, 8
Res judicata rule, applicability 2, 4, 6. 8
Society of Jesus, donations made to the 1
Syllabus 1
Tribunal
Competence 8
Composition 9
Expenses 12
Language 12
Meeting 11
Procedure 9
Sessions 2
Planchea, E. Mayor des. as plenipotentiary of Italy, signed claims convention of
February 13, 1903, Venezuelan Preferential Case 70,73
Poinrare, R., as plenipotentiary of France, signed agreement of April 4, 1912,
Carthage and Manouba Cases 340
Porraa, Don M ell ton F., signed, for Peru
Agreement for arbitration, Canevaro Case 294, 295
Note of April 27, 1910, Canevaro Case 296
Portugal
Arbitration: Island of Timor Case 354
Preferential claim*. See Venezuelan Preferential Cane.
656 INDEX
PAGE
President* of the tribunal*. See also Umpires.
Cancvaro Case, Louis Renault 284, 286, 294
Carthage Case, Knut Hjalmar Leonard Hammarskjold 329,330,331,336,340
Grisbadarna Case. J. A. Loeff 121,122,133
Manouba Case, Knut Hjalmar Leonard Hammarskjold 342,343,351
North Atlantic Coast Fisheries Case, H. Lammasch 142, 155, 193
Pious Fund Case, Henning Matzen 2, 4, 7
Savarkar Case, Auguste M. F. Beernaert 275, 276
Venezuelan Preferential Case, Nicolas V. Mourawieff 56. 57, 61
"Proees-verbal" of regrets, May 29, 1909, Casablanca Case
English translation 120
French text 485
Protocols. See Conventions, protocols, treaties, etc.
Puerto Cabello customs receipts See Yen ecu el an Preferential Case.
Quesada, Gonxalo de, arbitrator, Orinoco Steamship Company Case 227, 229
Questions before the tribunals. See under each case.
Ratifications of the Hague Conventions for the pacific settlement of International disputes
1899 Convention cii
1907 Convention civ
Reid, Whitelaw, signed, for the United States, modus rtvendi of
1906, October 6/8, North Atlantic Coast Fisheries Case 209
1907, September 4/6, North Atlantic Coast Fisheries Case 213
1908, July 15/23, North Atlantic Coast Fisheries Case 215
1909, July 22/September 8, North Atlantic Coast Fisheries Case 220
, Louis
Arbitrator '
Carthage Case 329,331,340
Casablanca Case 110, 111
Japanese House Tax Case 77,79,84
Manouba Case 342,343
Savarkar Case 275,276
President of the tribunal
Canevaro Case 284,286,294
Signed, for France,
Agreement for Arbitration
Carthage Case 338
Manouba Case 353
Tavignano, Camouna and Gaulots Cases 421
Definitive agreement of May 2, 1913, Tavtgnanu, Camouna and Gaulots Case* 421
Reports of commissions of Inquiry
North Sea or Dogger Bank Case
English translation 404
French text 609
Tabular statement of 423
Tavignano, Camouna and Gaulois Cases
English translation 413
French text 616
Reservations to the Hague Conventions for the pacific settlement of international disputes
1899 Convention ciii
1907 Convention cv
INDEX 657
PAGE
"Reft Jndlcata," applicability to Pious Fund claim 2, 4, 6, 8
Resolution of the United Btateb Senate, February 18, 1909, North Atlantic Coast
Fisheries Case 219
Bey. Franclb, secretary to the agent for Russia before the tribunal, Russian In- demnity Cate 299
Ribeiro, ISrnetito Rodolpho Ilintze, as plenipotentiary of Portugal, signed
Agreement of June 10, 1893, Island of Timor Case 395
Declaration of July 1, 1893, Island of Timor Case 396
Riecl-BuBatti, Arturo, agent for Italy before the tribunal
Carthage Case 331
Manouba Case 344
Rleck, A., Norwegian appointee, boundary commission of 1897, Grisbadarna Case 137
RIfaat, Pasha, as plenipotentiary of Turkey, signed agreement for arbitration, Rus- sian Indemnity Case 325, 328
RSell, Jonkheer W., secretary of the tribunal
Carthage Case 336
Grisbadarna Cas>e . . . 133
Manouba Case 351
Russian Indemnity Case 299,323
Rornln, JBraest, counsel for Turkey before the tribunal, Russian Indemnity Case 299
RojdestvenHky, Admiral, commander in chief of the Russian squadron, North Sea
or Dogger Bank Case 404,406,407
Roman Catholic Church of California, claims of prelates of the. See Pioiib Fund Case.
Romero, M., as plenipotentiary of Mexico, signed claims conventions of July 4, 1868,
Pious Fund Cas»e 13,17
Root, Elibu, signed
Agreement for arbitration. North Atlantic Coast Fisheries Case 155
American note of January 27, 1909, North Atlantic Coast Fisheries Case 216
RosBOlato, Mr., special attorney for Russian citizens before the tribunal, Russian
Indemnity Case 304
Ru spoil, M., as plempotentiai y Of Italy, signed agreement of April 4, 1912. Carthage
and Manouba Cases 340
Russia, Kraperor of, appointed arbitrators, Venezuelan Preferential Case 56,57,63
Arbitration : Russian Indemnity Case 297
Case before Hague commission of inquiry: North Sea or Dogger Bank Case 403
Rutmian Indemnity Case (RuHKia vt». Turkey)
Agents before the tribunal
Clunet, fidouard, for Turkey 299
Fromageot, Henri, for Russia 299
Agreement for Arbitration, July 22/ August 4, 1910
English translation 324
French text 551
Agreements, other
1878, January 19/31. excerpt 303
658 INDEX
PAGE
1878, February 19/March 3, preliminaries of peace, Article 19 303
1879, January 27/February 8, treaty of peace, Article 5 304, 324
Arbitrators
Ahmed Rechid Bey, Turkish appointee 297,299
Herante Abro Bey, Turkish appointee 297, 299
Lardy, Charles £douard, umpire 297, 298, 323
Mandelstam, Andre", Russian appointee 297, 299
Taube, Baron Michel de, Russian appointee 297, 298
Attorney for Russian citizens before the tribunal, special
Rossolato, Mr 304
Award of the tribunal, November 11, 1912
English translation 298
Final conclusion 302, 323
French text 532
Claimants: Russian citizens 297, 300, 303, 304
Claims for damages sustained by Russian citizens during Russo-Turkish war of
1877-78 297, 300, 303, 304
Contentions
Russian 301
Turkish 300
Counsel before the tribunal
Hesse, Andr6, for Turkey 299
Roguin, Ernest, for Turkey 299
Youssouf, Kemal Bey, for Turkey 299
Indemnities 297-328
Interest-damages 297-328
Moratory interest 298,305-323,325
Payments 302, 305, 306, 307, 308, 324
Origin of claim 297, 301
Questions before the tribunal 298, 300, 326
Secretaries of the
Agents before the tribunal
Campinchi, C, secretary of the Turkish agent 299
Rey, Francis, secretary of the Russian agent 299
Tribunal
Roell, Jonkheer W 299, 323
Verduynen, Michiels van 299,323
Syllabus 354
Tribunal
Competence 326
Composition 325
Expenses 328
Language 327
Meeting 299, 300, 326
Procedure 299, 326, 327
Sessions 297
Rnsulan Squadron, attack upon Hull ftahlng fleet See North Sea or Dojnrcnr Bank Case.
Sanchez, M. A., Grell contract transferred to, Orinoco Steamship Company Case 258,260
Savarkar Cane (France vs. Great Britain)
Agents before the tribunal
Crowe, Eyre, for Great Britain 277
Weiss, Andre", for France 277
Agreement for arbitration, October 25, 1910
English text 280
French text 519
Supplementary notes of October 25, 1910
English text 282
French text 520
INDEX 659
PAGE
Arbitrators
Bcernaert, Augustc M. F., president of the tribunal 275, 276
Uesart, Lord 275, 276
Gram, Gregers 275, 276
Renault, Louis 275, 276
Savormn Lohman, Jonkhecr A. F. dc 275, 276
Award of the tribunal, February 24, 1911
English text 276
Final conclusion 280
French text 516
Morea, the, British vessel from which Savarkar escaped 277 et seq.
Origin of dispute 275
Question before the tribunal 276, 280
Savarkar, Vinayak Damodar, Hindoo prisoner on board the British vessel Morea 277
Escape from the vessel 277, 278
Arrest by French police 277, 278
Return to the vessel by French police 278
Demand of France for i cstitution of 275
Syllabus 280
Tribunal
Competence 281
Composition 280
Expenses 282, 283
Language 281
Meeting 277,281
Procedure 281
Sessions 275
Savornin Lohman, Jonkheer A. F. de, arbitrator
Muscat Dhows Case 93, 95, 101
North Atlantic Coast Fisheries Case 142, 155, 193
Pious Fund Case 2,4,7
Savarkar Case 275,276
Hvhdningt J. M., Norwegian member, Joint Norwegian and Swedish State Council
to consider protocol of March 15, 1904, Grisbadarna Case 136
Hcialoja, Vittorio, counsel for Italy before the tribunal, Canevaro Case J86
SecretarieH of the trlbunala
Roell, Jonkhecr W.
Carthage Case 336
Grisbadarna Case 133
Manouba Case 351
Russian Indemnity Case 299,323
Verduynen, Michiels van
Canevaro Case 294
Carthage Case 336
Casablanca Case 117
Grisbadarna Case 133
Manouba Case 351
Orinoco Steamship Company Case 234
Russian Indemnity Case 299, 323
Segrave, Captain James, commissioner, Tavtgnano, Catnouna and Gaulots Cases 415
Sellr, Conde de, as plenipotentiary of Portugal, signed agreement of October 1, 1904,
Island of Timor Case 400
Seward, William H.f as plenipotentiary of United States, signed claims convention
of July 4, 1868, Pious Fund Case 13,17
Signature*, Hague Convention of 1907 for the pacific ftrttlement of international
disputes cv
660 INDEX
PACK Slave Trade* General Act of Brussels for the suppression of African, extract, Muscat
Dhows Case 104
Sombron* Captain* comnussionei , Tavignano, Camouna and Gait lots Cases 415
Spain
Arbitration: Venezuelan Preferential Case (Spain, Venezuela et al. rs Germany,
Great Britain and Italy; 55
Spavin* Admiral, commissioner, North Sea or Dogger Bank Case 410
Sternbnrs;, Baron Spook von, as plenipotentiary of Germany, signed
Agreement for arbitration, Venezuelan Preferential Case 62, 64
Claims convention of February 13, 1903, Venezuelan Preferential Case 65,67
Strug atad, O. 8. J., Norwegian member, Joint Norwegian and Swedish State Council
to consider protocol of March 15, 1904, Grisbadarna Case 136
Sweden. See also Sweden and Norway.
Arbitration: Grisbadarna Case (Sweden i>s Norway) 121
Swoden and Norway
Arbitration: Venezuelan Preferential Case (Sweden and Norway, Venezuela et al ,
vs. Germany* Great Britain and Italy) 55
Swinderen, R. de Marcos ran, as plenipotentiary of the Netherlands, signed agree- ment for arbitration, Island of Timor Case 389
Syllabi
Canevaro Case 284
Carthage Case 229
Casablanca Case 110
Grisbadarna Case 121
Island of Timor Case 354
Japanese House Tax Case 77
Manouba Case 341
Muscat Dhows Case 93
North Atlantic Coast Fisheries Case 141
North Sea or Dogger Bank Case 403
Orinoco Steamship Company Case . 226
Pious Fund Case 1
Russian Indemnity Case 297
Savarkar Case 275
Tavignano, Camouna and Gaulois Cases 413
Venezuelan Preferential Case 55
Tabular statement of awards and reports 423
Taube, Baron Mlcbel de* arbitrator
Carthage Case 329. 331, 340
Manouba Case 342, 343
Russian Indemnity Case 297, 298
"Tavlgrnano," "Camouna" and "Gaulois" Cases (France VH. Italy)
Agreement for inquiry, May 20, 1912
English translation 417
French text 617
Italian text 617
Agreements* other
1912, April 15* preliminary agreement for inquiry
English translation 419
French text 621
1912, November 8, compromis of arbitration
English translation 419
French text 621
INDEX 661
FACE
1913, May 2, definitive agreement settling the controversy
English translation 421
French text 623
Camouna, the, Tunisian mahonc attacked by the Italian torpedo boat Canopo. .413, 417, 420
Canopo, the, Italian torpedo boat, attack upon Tunisian mahones 413,417,420
Commission of inquiry
Composition 417
Conclusion not final 414, 415
Expenses 418
Language 418
Meeting 418
Procis-verbaMx 420
Commissioners
Segrave, Captain James 415
Sombron, Captain 415
Zerbi, Captain Guiseppe Genoese 415
Contentions
French 413
Italian 413
Fulminr, the, Italian torpedo boat, seizure of the Tavignano by 413,417
Gaulois, the, Tunisian m ah one attacked by the Italian torpedo boat Canopo 413,417
Indemnity for damages sustained by French citizens paid by Italy 413
Maps opposite 416
Origin of the disputes 413
Questions before the
Commission 417, 419
Tribunal 420
Settled out of court 421
Report of the commission, July 23, 1912
English translation 413
French text 616
Secretaries to assist the commission 418
Syllabus 413
Tcn'ignano, the, French steamer seized by the Italian torpedo boat Fulmine. . .413, 417, 419 Tribunal
Competence 420
Meeting 421
1'rooedure 420
Tcharykow, N., aj> plenipotentiary of Russia, signed agreement for arbitration, Rus- sian Indemnity Case 325, 328
Territorial jurisdiction. See North Atlantic Coast Fisheries Case.
Thornton, Sir Bel ward, umpire in original Pious Fund Case before claims commission of 1868
Award of, November 11, 1875 48
Amendment 53
Thouvenel, E.. as plenipotentiary of France, signed Declaration of March 10, 1862, between France and Great Britain, respecting the independence of the Sultans of Muscat, Muscat Dhows Case 103
Timor. See Inland of Timor Case.
Treaties. See Conventions, protocols, treaties, etc.
Trolle, Eric Blrger, as plenipotentiary of Sweden, signed agreement for arbitration,
Grisbadarna Case 133, 135
Turkey
Arbitration : Russian Indemnity Case (Turkey vs. Russia) 297
662 INDEX
PACK
Umpires. See also Presidents of the tribunals.
Casablanca Case, Knut Hjalmar Leonard Hammarskjold 110, 112, 117
Japanese House Tax Case, Gregers Gram 77, 79, 84
Muscat Dhows Case, H. Lammasch 93, 95, 101
Orinoco Steamship Company Case
Charles Augustinus Henri Barge, umpire in original case before claims commis- sion of 1903 255
H. Lammasch, umpire in case before the tribunal 227-230,234,236,255
Pious Fund Case
Henning Matzen, umpire and president of the tribunal 2, 4, 7
Sir Edward Thornton, umpire in original case before claims commission of 1868.. 48,53 Russian Indemnity Case, Charles £douard Lardy 297, 298, 323
United States
Arbitrations
North Atlantic Coast Fisheries Case (United States vs. Great Britain) 141
Pious Fund Case (United States vs. Mexico) 1
Orinoco Steamship Company Case (United States vs. Venezuela) 226
Venezuelan Preferential Case (United States, Venezuela et al. vs. Germany, Great
Britain and Italy) 5S
Velasco, Don Luis def founder of the Pious Fund, Pious Fund Case 39
Venezuela
Arbitrations
Orinoco Steamship Company Case (Venezuela vs. United States) 226
Venezuelan Preferential Case (Venezuela et al. vs. Germany, Great Britain
and Italy) 55
Civil code, Articles 1496, 1883, 1888, Orinoco Steamship Company Case 249,250
Decrees, Orinoco Steamship Company Case
1893, July 1, Article 1 253
1900, October 5, Articles 1, 2 254, 261
Financial code, Orinoco Steamship Company Case
Law xviii, Article 1 248
Law xxxhi, Articles 1, 6, 12 249
Venezuelan Preferential Case (Germany, Great Britain and Italy vs. Venezuela, Belgium, Mexico, the Netherlands, Spain, Sweden and Norway, and the United States)
Agreement for arbitration, May 7, 1903, between Germany and Venezuela
Adhesions 64
English text 62
German text 445
Great Britain and Venezuela note 1, 62
Italy and Venezuela note 1, 62
Arbitrators, appointed by the Emperor of Russia 56, 67, 63
Lammasch, H 56,57,61
Martens, F 56, 57, 61
Mourawieff, Nicolas V., president of the tribunal 56, 57, 61
Award of the tribunal, February 22, 1904
English text 56
Final conclusions 61
French text 441
Blockade of Venezuelan ports 55
Blockading Powers 55
Claims against Venezuela 55
Claimant Powers 55, 56
Payment of 55, 58, 66, 69, 72, 76
Uncontested 60
Claim commissions British commission
Competence 68
Composition 68
INDEX 663
PAGE
German commission
Competence 66
Composition 66
Italian commission
Competence 71
Composition 71, 72
United States commission
Competence 74
Composition 74
Expenses 75
Meeting 74
Procedure 75
Claims conventions between Venezuela and
Belgium, March 7, 1903 note, 74
France, February 27, 1903 note, 74
Germany, February 13, 1903
English text 65
German text 447
Great Britain, February 13, 1903 67
Interpretation of 73
Italy, February 13, 1903 70
Mexico, February 26, 1903 note, 74
Netherlands. February 28, 1903 note, 74
Spain, April 2, 1903 note, 74
Sweden and Norway, March 10, 1903 note, 74
United States, February 17, 1903
English text 74
Spanish text 449
Customs receipts of La Guaira and Puerto Cabello to be used for payment of
claims 55, 58, 66, 69, 72, 76
Equality of treatment in the payment of claims demand of
Neutral Powers 60
Venezuela 55
External debt of Venezuela 67, 69, 72
Origin of the case 55
Preferential treatment in the payment of claims demand of blockading Powers 59
Questions before the tribunal 58, 62
Syllabus 55
Tribunal
Competence 58
Composition 63
Expenses 61,63
Language 63
Meeting 57,63
Procedure 63
Sessions 56
Terdnynen, Mlclilela van, secretary to the tribunal
Canevaro Case 294
Carthage Case 336
Casablanca Case 117
Grisbadarna Case 133
Manouba Case 351
Orinoco Steamship Company Case 234
Russian Indemnity Case ?99, 323
Tilla Puente, Marquis de, founder of the Pious Fund, Pious Fund Case 39
Visit and search
Caithagc Case 333
Manouba Case 346, 347
664 INDEX
PAGE.
Vofft, Paul Benjamin
As plenipotentiary of Norway, signed agreement for arbitration, Grisbadarna Case.. 133, 135 Norwegian member, Joint Norwegian and Swedish State Council to consider protocol
of March 15, 1904, Grisbadarna Case 136
Wadsworth, William Henry, commissioner, original Pious Fund Case before claims
commission of 1868, opinion 17
Weies, Andre1, agent for France before the tribunal, Casablanca Case 112
Weetrin*, H. G.
Signed Royal Resolution of March 26, 1904, Grisbadarna Case 136
Swedish appointee, boundary commission of 1897, Grisbadarna Case 137
Swedish member, Joint Norwegian and Swedish State Council to consider protocol
of March 15, 1904, Grisbadarna Case 136
YonsBouf K6mal Bey, counsel for TurKey before the tribunal, Russian Indemnity
Case : 299
Zaraacona, M anil el Maria de, commissioner, original Pious Fund Case before claims
commission of 1868, opinion 22
Zerbi, Captain Guiseppe Genoese, commissioner, Tavignano, Camouna and Gaulot*
Cases 415
1 33 204