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JUDICIAL DECISIONS INVOLVING QUESTIONS OF

INTERNATIONAL LAW

RUSSIA VERSUS TURKEY

1

Award rendered November 11, 1912, by the Arbitral Tribunal constituted by virtue of the Arbitration Agreement signed at Constantinople between Russia and Turkey, July 22/August 4, 1910

By a compromis signed at Constantinople July 22/August 4, 1910, the Imperial Government of Russia and the Imperial Ottoman Government agreed to submit to an arbitral tribunal the final decision of the following questions:

I. Whether or not the Imperial Ottoman Government must pay the Russian claimants interest-damages by reason of the dates on which the said government made payment of the indemnities determined in pursuance of Article 5 of the Treaty of January 27/February 8, 1879, as well as of the Protocol of the same date?

II. In case the first question is decided in the affirmative, what would be the amount of these interest-damages?

The arbitral tribunal was composed of

His Excellency Monsieur Lardy, Doctor of Laws, member and former president of the Institute of International Law, Envoy Extraordinary and Minister Plenipotentiary of Switzerland at Paris, member of the Permanent Court of Arbitration, umpire;

His Excellency Baron Michael von Taube, Assistant Minister of Public Instruction of Russia, Councilor of State, Doctor of Laws, associate of the Institute of International Law, member of the Permanent Court of Arbitration;

Monsieur André Mandelstam, First Dragoman of the Imperial Embassy of Russia at Constantinople, Councilor of State, Doctor of International Law, associate of the Institute of International Law;

Herante Abro Bey, Licentiate in Law, Legal Counsellor of the Sublime Porte; and Ahmed Réchid Bey, Licentiate in Law, Legal Counsellor of the Sublime Porte;

1 Translated from the French by George D. Gregory, of Washington, D. C.

Monsieur Henri Fromageot, Doctor of Laws, associate of the Institute of International Law, advocate in the Court of Appeals of Paris, acted as agent of the Imperial Russian Government and was assisted by Monsieur Francis Rey, Doctor of Laws, Secretary of the European Commission of the Danube, in the capacity of secretary;

Monsieur Edouard Clunet, advocate in the Court of Appeals of Paris, member and former president of the Institute of International Law, acted as agent of the Imperial Ottoman Government and was assisted by

Monsieur Ernest Roguin, Professor of Comparative Legislation in the University of Lausanne, member of the Institute of International Law, in the capacity of counsel to the Ottoman Government;

Monsieur André Hesse, Doctor of Laws, advocate in the Court of Appeals of Paris, in the capacity of counsel to the Ottoman Government; Youssouf Kémâl Bey, Professor in the Faculty of Law of Constantinople, former deputy, Director of the Ottoman Commission of Juridical Studies; in the capacity of counsel to the Ottoman Government;

Monsieur C. Campinchi, advocate in the Court of Appeals of Paris, in the capacity of secretary to the agent of the Ottoman Government; Baron Michiels van Verduynen, Secretary General of the International Bureau of the Permanent Court of Arbitration, acted as Secretary General, and

Jonkheer W. Röell, First Secretary of the International Bureau of the Court, attended to the secretariat.

After a first session at The Hague on February 15, 1911, to arrange certain questions of procedure, the cases and counter-cases were duly exchanged by the parties and communicated to the arbitrators, who declared respectively, as well as the agents of the parties, that they waived the right to ask for further information.

The arbitral tribunal met again at The Hague on October 28, 29, 30, 31, November 2, 5, and 6, 1912, and after having heard the oral arguments of the agents and counsel of the parties, made the following award:

PRELIMINARY QUESTION

In view of the preliminary request of the Imperial Ottoman Government that the claim of the Imperial Russian Government be declared inadmissible without examining the principal question, the tribunal, considering that the Imperial Ottoman Government bases this pre

liminary request, in its written demands, upon the fact "that the direct creditors for the principal sums adjudged to them were the Russian subjects individually, benefiting by a stipulation made in their names, either in the preliminaries of peace signed at San Stefano February 19/ March 3, 1878, or by Article 5 of the treaty of Constantinople of January 27/February 8, 1879, or by the protocol of the same date, and that their titles in this respect were established by the designative decisions of the commission ad hoc which met at the Russian Embassy at Constantinople, which decisions were communicated to the Sublime Porte; "That, under these circumstances, the Imperial Russian Government should have proved the survival of the rights of each claimant and the identity of the persons entitled at the present time to avail themselves of these rights, especially since the transfer of certain of these rights has been reported to the Imperial Ottoman Government;

"That, even admitting that the Russian state was the only direct creditor as to the indemnities, the Imperial Russian Government should have, nevertheless, made such proof, inasmuch as the said government could not deny its duty to transmit to the claimants or their assigns the sums which it might obtain in the present suit as moratory interestdamages, the claimants appearing, upon this supposition, as beneficiaries of the stipulation made in their interest, if not as creditors.

"That, however, the Imperial Russian Government furnished no proof as to the identity of the claimants or of their assigns, or as to the survival of their claims." (Counter-Reply of Turkey, pp. 81 and 82.) Considering that the Imperial Russian Government maintains, on the contrary, in its written demands

"That the debt specified in the treaty of 1879 is, none the less, a debt of state to state; that it could not be otherwise as to the responsibility resulting from the failure to pay the said debt; that consequently the Imperial Russian Government alone is qualified to receipt for it, and, for that reason, to receive the sums to be paid to the claimants; that, moreover, the Imperial Ottoman Government does not dispute the Russian Government's title of direct creditor of the Sublime Porte;

"That the Imperial Russian Government is acting by virtue of a right which it possesses in claiming the interest-damages on account of the non-fulfilment of an engagement made with it directly;

"That it fully proves its rights by establishing the non-fulfilment of this engagement, which, moreover, is not disputed, and by presenting its title, which is the treaty of 1879

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"That the Sublime Porte, provided with the receipt regularly delivered to it by the Imperial Russian Government, has no concern in the allotment of the sums distributed or to be distributed by the said government among its subjects entitled to indemnity; that this is a question of a domestic nature with which the Imperial Ottoman Government has nothing to do"; (Reply of Russia, pp. 49 and 50).

Considering that the origin of the claim goes back to a war, an international fact in the first degree; that the source of the indemnity is not only an international treaty but a treaty of peace and the agreements made with a view to the execution of this treaty of peace; that this treaty and these agreements were between Russia and Turkey, settling between themselves, state to state, as public and sovereign Powers, a question of international law; that the preliminaries of peace included in the indemnities "which His Majesty the Emperor of Russia claims that the Sublime Porte bound itself to pay to him" the ten million roubles allowed as damages and interest to Russian subjects who were victims of the war in Turkey; that this condition of debt from state to state has been confirmed by the fact that the claims were to be examined by a purely Russian commission; that the Imperial Russian Government has full authority in the matter of conferring, collecting and distributing the indemnities, in its capacity as sole creditor; that whether, in theory, Russia has acted by virtue of its right to protect its nationals or by some other right is a matter of little moment, since it is with the Imperial Russian Government alone that the Sublime Porte entered into or undertook the engagement the fulfilment of which is demanded;

Considering that the fulfilment of engagements is, between states, as between individuals, the surest commentary on the effectiveness of these engagements;

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That, upon the attempt of the Ottoman financial department in 1885 to impose the proportional stamp-tax required from individuals by the Ottoman laws, upon a receipt given by the Russian Embassy at Constantinople for a payment on account, Russia immediately protested and maintained "that the debt was one contracted by the Ottoman to the Russian Government" * * and "not a simple debt between individuals arising from a private engagement or contract" (Russian note of March 15/27, 1885, Russian Memorandum, Appendix No. 19, p. 19); that the Sublime Porte did not insist, and that in fact the two parties have constantly acted in practice, for more than fifteen years, as if Russia was the creditor of Turkey and not of private claimants;

That the Sublime Porte has made, without a single exception, all the successive payments upon the receipt alone of the Russian Embassy at Constantinople, acting in behalf of its government;

That the Sublime Porte has never asked, upon payments on account, if the beneficiaries were still living or who were their assigns at the time, or according to what method the payments on account were divided among them, leaving this duty entirely to the Imperial Russian Government;

Considering that the Sublime Porte contends, in the main, in the present litigation, that it is fully released by the payments which it has, in fact, made to the Imperial Russian Government alone represented by its Embassy, without the participation of the claimants;

For these reasons decides that

THE PRELIMINARY REQUEST IS SET ASIDE.

Passing then upon the main question, the arbitral tribunal renders the following decision:

I

IN THE MATTER OF FACT

The protocol signed at Adrianople January 19/31, 1878, which put an end by an armistice to hostilities between Russia and Turkey, contains the following stipulation:

5. The Sublime Porte engages to indemnify Russia for the cost of the war and the losses that it has been forced to suffer. The character of this indemnity, whether pecuniary, territorial or other, will be arranged later.

Article 19 of the preliminaries of peace signed at San Stefano February 19/March 3, 1878, is in these terms:

The war indemnities and the losses suffered by Russia which His Majesty the Emperor of Russia claims, and which the Sublime Porte has engaged to pay to him, consist of: (a) 900 million roubles, war expenses; (b) 400 million roubles, damages upon the southern coast; (c) 100 million roubles, damages in the Caucasus; (d) ten million roubles, damages and interest to Russian subjects and institutions in Turkey: total 1400 million roubles.

And further on:

The ten million roubles claimed as indemnity for Russian subjects and institutions in Turkey shall be paid as soon as the claims of those interested have been examined by the Russian Embassy at Constantinople and transmitted to the Sublime Porte.

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