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
1 Langc, 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 Conference 2 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.
3 Printed 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.
2 For the North Sea or Dogger Bank Case, see post, p. 403.
8 Scott, The Hague Peace Conferences of 1899 and 1907, vol. i, pp. 77, 78, 307.
4 Post, 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
1 Letter 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.
2 See 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 Case 1 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 TRANSLATIONS 1 ]
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 ;
1 These 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 elle t 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 soit f de fun des com-
missaires f ou eventuellement de
I'un des assesseurs f 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, and f
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 sit t 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 sont t 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 dy 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
1 See 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 interieure f
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 d f 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
qu f il 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 deposition t 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 dires f
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 publique f 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.
1 See footnote 1, opposite page.
2 See 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 38 2
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 17 2
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.
8 Chile 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
1 See footnote 2, opposite page.
PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES
lix
1899
ARTICLE 19 l
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 40 1
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
1 See footnote 2, ante, p. Ivii.
2 Cf. 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
compromis f 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
1 See 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 48 1
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
1 See 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-
1 Cf. Article 37, paragraph 2, of the 1907 Convention
Ixxii THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE
1899 1907
ment f 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
compromis t 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 d f 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 53 1
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 54 1
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
1 See footnote 1, opposite page.
2 See 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
contractante f 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
n f etant 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-
hcsion f 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 60 1
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
1 A 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 et f 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 :
1 A11 these reservations were made at signature.
Reservations maintained at ratification.
8 Declaration 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
X A11 these reservations were made at signature except the second reservation
of the United States.
"Reservation maintained at ratification.
8 Statement 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.
8 Statement 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 Mascate t
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 d f 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 award 2 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. z Post, 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 agreement 1 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. 2 Post, 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.
z Post, 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 umpire 1 ;
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,
1876 2 ;
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
1 C7. 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
1 C7. .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 6 1 ).
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 13 1 ). 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
1 Not 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.
2 The 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 hand y 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 hand 4 ;
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.
2 Official 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,
1903 1 , 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-
ica 1 ) ;
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
J Not printed.
THE VENEZUELAN PREFERENTIAL CASE 61
January 23rd, 1903 1 ) 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
J MR. 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 Government 2 ;
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
1 Official 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.
z Post, 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.
l er 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
1 Malloy, 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
1 Official 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.
1 Malloy, 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.
2 Post, 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.
*Post t 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
1 Official 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.
Z TRANSLATION : 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, i8p6 l
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 Brussels 8 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. z Post, p 103.
8 For 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 x new 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
1 Official 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 maisons f 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 Trade 1
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
1 Official 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
