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Having appointed mixed commissions to fix the boundaries in accordance with the arbitral award of the Spanish Crown, which had, for one reason or another, failed to do so or to complete their work, the convention of arbitration provided that the President of the Swiss Confederation should appoint experts, who should be persons of the same nationality as the arbiter, that is to say, Swiss citizens. Inasmuch as the experts are Swiss and are subject to the direction of the arbiter, it is to be presumed that the frontiers of the two countries will be delimited in the near future.
It was apparently the intention of the high contracting parties to negotiate a treaty regulating the navigation of the rivers common to both, the commerce in the frontier districts and during its transit through the two Republics. It was therefore provided in the convention that if this treaty of navigation and commerce should be concluded before the award, the arbiter should take note of its terms in so far as they might affect the questions in dispute; if the treaty of navigation and commerce were concluded after the award, that its terms should be modified in accordance with the provisions of the treaty. The treaty has, however, not been concluded.
The award of the Swiss Federal Council was rendered on March 24, 1922. It decided that the portions of the frontier settled by the award of the Crown of Spain, and as well as those fixed by the mixed commissions, constituted under the pact or convention of December 30, 1908, should be carried into effect without awaiting the final determination of all of the boundary disputes in question, and that the territory awarded to Colombia or Venezuela should be taken possession of and occupied by the authorities of one or the other country. That there might be no doubt about this phase of the subject, the award specified the sections which were to be occupied, and likewise specified the sections or portions thereof to be excepted from such occupation until the experts to be appointed by the Swiss government should have fixed the boundaries which were still in dispute.
The award is accompanied by an elaborate historical introduction, which gives an added value to the decision. Indeed, it is only fair to say that the arbitral awards whether rendered by the Swiss government or by Swiss publicists are models of their kind.
JAMES BROWN SCOTT.
HAGUE ARBITRATION COURT AWARD IN THE FRENCH CLAIMS AGAINST PERU
On October 11, 1921, the Hague Court of Arbitration made its award in the case of the French Claims against Peru. The compromis for this case was signed on February 2, 1914, and it provided for summary procedure in accordance with Chapter 4 of the Hague Convention of 1907. The three arbitrators were Mr. Sarrut, President of the Court of Cassation at Paris, and Mr. Elguera, former Minister Plenipotentiary and Mayor of Lima, and these together named as a third member Mr. Ostertag, President of the Swiss Federal Court. The written cases were presented January 31, 1920, and the counter cases, January 26, 1921. The court met at The Hague on October 3, 1921.
In this case Dreyfus Brothers & Company had obtained by a contract of August 17, 1869 from the State of Peru two million tons of guano with the privilege of monopoly sale in the markets of Europe and its colonies. The company had bound themselves in advance by the payment of certain sums. Ten years after the contract the dictator, Piérola, seized the Government of Peru. There were many disputes as to outstanding Peruvian obligations. The Dreyfus Company wrote to Piérola that they were willing to entrust “to him the decision of the questions in dispute and that they accepted his decision in advance.” He fixed the balance due the company on June 30, 1880 at £3,214,388, 1ls. 5d. In 1881, Piérola's government might be said to be generally recognized. Later, however, it was overturned and in 1886 a Peruvian law declared "all the internal acts of the government performed by Nicolas de Piérola null.”
The award of the Court of Arbitration was, subject to certain deductions for payments already made, etc., in favor of the French claimant. The award does not allow capitalization of interest, but only simple interest.
This award supports previous decisions of the Hague Court of Arbitration in some respects, as may be seen by reference to the case of the United States and Venezuela in the Oronoco Steamship Company in 1910 and to the case of Italy and Peru in the claims of the Canevaro Brothers in 1912. The award also reaffirms the principle repeatedly supported by the court that the responsibilities of the State are not divested by a mere change in the personnel of the government, a principle that is necessary for the maintenance of stability in international relations.
In 1910 France and Peru had agreed to submit to arbitration the claims of French creditors presented by the Banque de Paris et des Pays-Bas and it is from a sum of twenty-five million francs that the claims involved in this award are to be paid by a pro rata adjustment.
Possibly this award may be regarded as an illustration of the application of Hague Convention II of 1907 embodying the Drago Doctrine.
GEORGE GRAFTON WILSON.
REPORT OF THE INTERNATIONAL COMMISSION OF INQUIRY IN THE LOSS OF THE
DUTCH STEAMER TUBANTIA
Under the convention of March 30, 1921, Germany and Holland agreed to refer the question of the loss of the Netherlands steamer Tubantia, to a Commission of Inquiry. This commission consisted of Mr. Hoffmann, former member of the Swiss Federal Council, Rear Admiral Surie of the Dutch Navy, Captain Ravn of Denmark, Captain Unger of Sweden, and Captain Gayer of Germany.
The Tubantia was sunk March 16, 1916, by a torpedo. The torpedo was identified as German torpedo No. 2033. The sinking had led to much correspondence between Holland and Germany, and finally a commission of inquiry was agreed upon. The torpedo was from U-boat 13. The Germans maintained that this torpedo had been launched at a British vessel on March 6, 1916 at 4:43 P.m., and that through defects in the mechanism or for other reasons it may have remained afloat for ten days till struck by the Tubantia.
The commission admitted evidence that the wake of a moving torpedo was seen just before the Tubantia was struck, that parts of Torpedo No. 2033 belonging to U-boat 13 were found in the boats of the Tubantia, that the logbook of the U-boat does not give authentic data as to its location at the time of the sinking of the Tubantia, that it was not impossible that the Tubantia might have been sunk by a floating torpedo, but the conviction of the commission is that the Tubantia was sunk on March 16, 1916, by the explosion of a torpedo launched by a German submarine. The question of the determining whether the torpedoing took place knowingly or as the result of an error of the commander of the submarine must remain in suspense.”
Thus the responsibility is placed upon the German submarine, as was contended by Holland at the beginning, and this conclusion of the Commission of Inquiry rendered on February 27, 1922, puts an end to a longstanding controversy.
GEORGE GRAFTON WILSON.
INTERNATIONAL RESPONSIBILITY IN HAITI AND SANTO DOMINGO
The grave problem of international responsibility is most vividly presented in the prolonged intervention of the United States in the affairs of Haiti and Santo Domingo. “A stain has attached to our national honor, which, unless speedily expunged, will become an indelible blot,” according to the report of twenty-four American lawyers of repute issued under the auspices of The Foreign Policy Association of New York City.
The facts concerning this situation may be ascertained by consulting the reports of the “Hearings before a Select Committee on Haiti and Santo Domingo, United States Senate.” This special committee of the Senate conducted a most thorough and fair investigation in these countries, where natives and foreigners alike were given every possible opportunity to present their testimony. Part Four of these reports embodies a special report by Professor Carl Kelsey of the University of Pennsylvania, who spent several months in these Republics making an independent impartial investigation of great value. Mr. Lansing, former Secretary of State, under date of May 4, 1922, addressed to Hon. Medill McCormick, Chairman of the Select Committee on Haiti and Santo Domingo, a letter giving most important diplomatic information concerning the grounds for intervention. This JOURNAL
1 See Congressional Record, Vol. 62, No. 122, page 7081.
has had occasion to comment editorially on the separate interventions of the United States in Haiti and in Santo Domingo.?
Space will not permit a detailed resumé of the various charges brought against American intervention. It is only possible to consider the principles involved. Criticism has been directed firstly, against methods, and secondly, against the right of intervention.
Concerning the methods employed, there is evidently room for criticism. Most serious charges have been made against various American officials. Whether these charges are well-founded or not, it would appear that sufficient consideration has not always been shown for the natural sensitiveness of the people of Haiti and of Santo Domingo. The Documents Diplomatiques of correspondence with the United States as published by the Government of Haiti reveals at times a certain curtness and stiffness of tone not calculated to facilitate friendly diplomatic intercourse.
Given the extraordinary situations to be faced and the inevitable human equation, it is but natural, of course, that there should be considerable criticism of American methods in Haiti and Santo Domingo. The officials charged with the heavy task of supervising the internal and external affairs of these two unhappy republics are not angels endowed with superhuman wisdom and patience. Not all were equal to their tasks; not all worthy of their high responsibilities. But this demands great charity; not unbridled denunciation.
It is extremely difficult for an outsider to visualize fairly the problems of American officials charged with the grave responsibility of dealing with the baffling conditions in these countries. The attempt to apply to Haiti and Santo Domingo the same standards of procedure as might be invoked in Rhode Island is as unjust as it is unwise. To demand the employment of "the methods that obtain between free and independent sovereign states"to quote the protest above cited—is to ignore the realities of the situation in the Caribbean and in other parts of the world.
The inequalities, moral and material, between nations are so marked in many instances that immense charity and good sense is required in international intercourse. Certain peoples in a retarded stage of political development cannot reasonably be held to rigid interpretations either of constitutional or of international law. Free elections in a good many countries would mean the elimination of those most fit to govern. Some nations clearly require great forbearance and assistance in the fulfillment of their international obligations. Legalistic theories and the tenuous refinements of abstract principles must not be permitted to thwart any genuine efforts to help raise the general average of civilization and to fit peoples for international privileges and obligations. There are no universal inflexible rules to be followed in all nations alike.
2 See Vol. 10, page 859 (1916), and Vol. 11, page 394 (1917).
Criticism of methods, however, except as a wholesome corrective of public abuses, is of lesser importance than criticism of policies. Methods may be easily changed; policies are not so readily altered. If men are not agreed concerning policies, they naturally cannot agree concerning methods.
Criticism of American intervention in Haiti on grounds of policy has been based on the denial of the right to intervene either under the Constitution or under international law. It has been asserted by the twenty-four lawyers that, “the imposition and enforcement of martial law without a declaration of war by our Congress and the conduct of offensive operations in Haiti
prior to the acceptance of the treaty (of 1915) by Haiti were equally clear violations of international law and of our own Constitution.”
The right of the President under the Constitution to intervene in foreign lands, as well as the nature of the military administration he may establish, were discussed in the editorial already cited (Vol. 11, p. 394.) It was there pointed out that the power of the President as Commander-in-Chief of the Army and Navy to conduct and to protect the foreign relations of the nation is most sweeping and comprehensive. This is clear in his enforcement of treaties, which are a part of the law of the land according to the Constitution; and, on technical grounds at least, would justify intervention in Santo Domingo. It would also seem clear in the President's power to protect American citizens abroad, as in the conspicuous instance of the military expedition to China during the Boxer uprising. The Supreme Court cited In Re Neagle (135 U. S. 1) the instance of the drastic action of Captain Ingraham of the U. S. sloop of war St. Louis in protecting Martin Koszta in Smyrna in 1853; and it did not seem to question the general right of the President under the implied powers of the Constitution to resort to extreme measures for the protection of national rights and interests.
Mr. Edward S. Corwin, in his book on The President's Control of Foreign Relations, stresses the fact that the Supreme Court has always been scrupulous to express no opinion on "political questions" which concern the field of diplomacy:
Incidentally to the discharge of his diplomatic functions the President-and for that matter, Congress too, when action touches foreign relations—finds it necessary to decide many questions of a juristic charac
а ter, questions involving the interpretation of treaties and other bilateral agreements, or even of the Law of Nations. Now it is the practice of the Court, when such determinations fall clearly within the diplomatic field, that is, are made with jurisdiction, to treat them not; only as final but also as establishing binding rules for all future cases in which the same questions are raised collaterally. (p. 163).
The right of the President to land American troops on foreign soil and to set up a military administration may be open to grave abuse. Such power is undoubtedly portentous; but there would seem to be no justification for the assertion that such action is “a clear violation" of the Constitution. There