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ested parties, having gone to Congress, that body should declare their legitimacy and decide upon their payment, without which the Cuban Government would not be able to do, constitutionally, either one or the other thing. For claims distinct from those which are founded on that clause, Cuba is not responsible, either on the ground of the successor of the Spanish state, or on the ground of the successor of the revolution, which did not constitute an international personality and which was not recognized as such; nor would the Cuban Government be able to acquiesce in the payment of those debts, because the constitutional clause, which is prohibitive of the recognition of all debts and engagements not specified, prohibits it.
The writer then states that in regard to the claims presented to Cuba for payment that are not founded on the first provisional clause of the Constitution, the government will not be able to submit them to an arbitral decision, for it can only submit claims which are within its competency, and that an international tribunal would not be able to pronounce and order a thing done which a party was not competent to do. Consequently, a government is not able to empower arbitrators to decide on a thing which has been demanded of it when it has not the competency to grant such power. If the Cuban Government is not able, constitutionally, to recognize the obligations, it would not be able to confer upon arbitrators jurisdiction to recognize them. If it is not able, constitutionally, to pay them, it would not be able to confer upon arbitrators jurisdiction to decree payment.
The writer indicates a lack of confidence in his argument when he states that if it should be necessary to submit the claims to arbitration, and, for that purpose, to reform the Constitution, the arbitral opinion would have to limit itself to deciding upon the responsibility or the irresponsibility of the Cuban state.
He then states that if this question should be decided against Cuba by an arbitral tribunal (although he thinks it absurd that such a thing could happen), then it would be necessary for the Cuban Government to examine the claims, inquiring into and analyzing the facts and the quantity of the same, for the purpose of deciding the amount due; and that when the government had formed a judgment as to the quantity of claims and has entered into communication with the claimant governments, there would again be a new arbitration, which would then discuss the legitimacy and the amount of the claims.
The reviewer has set forth, rather fully, this most interesting article,
because he felt that, by doing so, the reader might be able to grasp the line of argument of the author.
There are three legal questions discussed, which are of utmost interest, especially, to the claimant governments.
(1) When did Cuba become a state, and, as such, responsible for her acts? This question is capable of discussion along lines of political philosophy, as well as those which are purely legal. The writer states that the Revolutionary Constitution of Jimaguayu was voted on the 16th day of September, 1895, and promulgated September 19th, of the same year, and that it gave itself the name of "Constitution of the Provisional Government of Cuba." This, it would appear, was the beginning of the Cuban state. Certainly, it seems to the reviewer, that there was then a de facto state, which carried on war against Spain and was the means, possibly due to the war between Spain and the United States, of its later becoming a de jure state at the time of the surrender of the sovereignty by Spain in the treaty between it and the United States, and, as such, it would appear to be responsible for obligations incurred by reason of the struggle for statehood, said obligations being necessarily incident thereto. To contend otherwise would seem to be an attempt to free herself of responsibility for the very acts which assisted her in obtaining statehood. The argument advanced by the writer would not seem to have any more legal weight than an argument that Cuba could not be responsible nor be held responsible for claims that may arise to-day, because she is not a state de jure and sovereign on account of the Platt Amendment and the possible intervention of the United States.
(2) The claim that Cuba can limit its responsibility by an article in its Constitution cannot be supported by international precedent or equitable principles. One of her sister republics had a provision in its Constitution which provided that foreigners could not, under certain circumstances, make a claim against the government; but when the question was presented before an arbitral tribunal, the arbitrators did not hesitate to find against the clause.
(3) The author states that if it is necessary to reform the Constitution and arbitrate, the only question that the tribunal could have jurisdiction over is an abstract one - the responsibility or irresponsibility of the Cuban state. In case of a finding adverse to Cuba, then he says that Cuba would examine the claims, and, thereafter, there would have to be another arbitration to pass upon the legality and amount of the
claims. These suggestions, if carried out, would place upon the claimants the expense of practically three arbitrations:
(a) On the question of the responsibility of the Cuban state, - to be decided by an arbitral tribunal.
(b) On the question of the proof, -to be presented before the Cuban Government.
(c) On the question of the legitimacy and the amount of the claims, to be presented before an arbitral tribunal.
How much more practical and simple it would be, in case Cuba should consent to arbitrate, to submit to but one arbitral tribunal the two questions:
(a) Is Cuba responsible?
(b) And, if so, to what extent?
WALTER S. PENFIELD.
Das internationale Privat-und Zivilprozessrecht auf Grund der Haager Konventionen. By Dr. F. Meili and Dr. A. Mamelok. Zurich: Orell Füssli. 1911. pp. xvi, 427.
The greatest progress in the science of private international law, known since the days of Bartolus (1314–1357), has been made during the 19th century. With the rapidly increasing intercourse among nations, there was naturally awakened a deep interest in the study of this branch of the law. Much was accomplished during this time to place this subject upon a deeper and broader foundation, but, as far as practical results are concerned, no great advance was made in the harmonization of the rules actually governing in the various countries. In the end it became apparent that this object could be accomplished only by international agreement. Through the initiative of the Government of the Netherlands, conferences were held in 1893, 1894, 1900, and 1904, at The Hague, by the leading countries of Continental Europe, the results of which
(1) Three conventions on marriage, divorce and separation, and guardianship, signed in 1902 by Austria, Belgium, France, Germany, Hungary, Italy, Luxemburg, Netherlands, Portugal, Roumania, Spain, Sweden, and Switzerland, and now in force in most of these states.
(2) A convention concerning civil procedure, signed in 1896 and in effect since 1899 in Austria, Belgium, Denmark, France, Germany, Hungary, Italy, Luxemburg, Netherlands, Norway, Portugal, Roumania, Russia, Spain, Sweden, and Switzerland.
This convention, revised by the fourth conference, is now supplanted by a convention signed in 1905 and in effect in the above mentioned states, excepting Luxemburg, since 1909.
(3) A convention concerning the effect of marriage upon the rights and duties of married persons in their personal relations and upon their property, signed in 1905.
(4) A convention relating to interdiction and similar measures, signed in 1905.
(The last two conventions have been signed and approved by a number of states and will go into effect as soon as six of the contracting parties have deposited their ratifications at The Hague.)
(5) A draft of a convention concerning succession and wills.
(6) A draft relating to bankruptcy, which is to serve merely as a basis for conventions to be concluded between particular states.
The work of the Hague conferences has stimulated materially the interest already existing in the conflict of laws and has led to the publication of a considerable literature, which is indicated by Dr. Meili and Dr. Mamelok on pp. XIII to XVI of the present work. In some of these works the conventions are given high praise; in others they are subjected to severe criticism. The present work by Dr. Meili and Dr. Mamelok occupies a middle ground. It recognizes that the conventions are defective and it suggests the desirability of a revision in some particulars. But it does not condemn. Dr. Meili was a delegate to the convention and therefore able to appreciate the difficulties in the way of reaching theoretically sound results. No perfect work could be expected from a conference in which 13 or more states took part, many of whose delegates were under strict instructions and represented on many points radically different views. A compromise was the best to be accomplished. The fact that under these conditions any agreement whatever was reached makes these conventions, in the eyes of the authors, a great landmark in the history of the conflict of laws.
The authors' object in writing the present work is explained in the preface. It is to make the convention better understood in Switzerland. Switzerland adopted all of the above conventions except those appearing under (3) and (4), but those relating to guardianship and procedure met with considerable opposition. This opposition the authors attribute largely to an insufficient knowledge of the principles of the conflict of laws on the part of the persons charged with the application of the convention a knowledge which the conventions presuppose - and to
the difficulty of understanding and interpreting the conventions themselves. In order to present as clear a picture as possible, the discussion is limited to a consideration of the four conventions ratified by Switzerland. By way of introduction, the authors call attention to some of the burning questions in the conflict of laws (such as nationality, and domicile, public policy, evasion of domestic law, and renvoi), and to the efforts made in behalf of the unification of the rules relating to this subject, which culminated in the Hague conferences. In the so-called General Part the authors set forth certain general principles common to the four conventions, viz., the nature of the rules contained in the conventions, their interpretation, and the mode of giving effect to them in the contracting states. In the discussion of the particular conventions, the authors deal with the conditions upon which the application of the rules laid down in each convention depends, the leading differences in the rules of private international law existing in the states in which the convention is in force; and the principles governing each convention.
The authors have done well to eliminate from their discussion all detail and to confine themselves to a consideration of the broad principles underlying the conventions. They are to be congratulated upon having succeeded in presenting to us an interesting and illuminating work upon a most complicated topic. It is an excellent general treatise on the Hague conventions relating to marriage, divorce and separation, guardianship, and civil procedure, and may be especially recommended to all who seek to make their first acquaintance with these conventions. The text of the Hague conventions is printed at the end of the work in the original (French) and in a German translation.
E. G. LORENZEN.
Le Droit International Privé d'après les Conventions de la Haye. By G. C. Buzzati. Vol. I, Le Mariage d'après la Convention du 12 Juin, 1902. French translation of the Italian text, which was revised and corrected by the author, by Francis Rey. Paris: Larose & Tenin. 1911. pp. xvii, 507. 12 fr.
This is the first volume of an extensive treatise, in translated form, which Professor Buzzati, of the University of Pavia, plans to write on the Hague conventions. The original in Italian appeared in 1907. The translation was undertaken at the instance of the Revue de Droit International Privé, which, with the object of widening as far as possible the horizon of the French jurists in this important branch of juridical