The Interpretation of Treaties by Judicial Tribunals 9780231894746

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S'UDIES IN HISTORY, ECONOMICS AND PUBLIC LAW Edited by the FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY

NUMBER 389

THE INTERPRETATION OF TREATIES BY JUDICIAL TRIBUNALS BT YI-TING CHANG

SA T H E LATE DR. SUN, Y A T - S E N

PREFACE IN this volume I have attempted to analyze cases involving treaty interpretation handed down by international and national tribunals, and to summarize judicial experience in that field in a form convenient for reference. While the monograph is not primarily concerned with the studies made by other publicists in the same field, for the purpose of reference, a bibliography has been included in the volume, in which some of the more important secondary works are listed. I take pleasure to acknowledge my boundless gratitude to Professor Charles Cheney Hyde without whose supervision this work would not have been possible. M y indebtedness is also due to Professors Joseph P. Chamberlain and Philip C. Jessup for their invaluable criticisms. YI-TING CHANG COLUMBIA

UNIVERSITY,

JANUARY,

1933.

7

TABLE OF CONTENTS PAGB

PREFACE

7

T A B L E OF CASES C I T E D

11

L I S T OF ABBREVIATIONS

17

CHAPTER 1 Introduction

19 CHAPTER

II

Respect for " Clear Meaning " CHAPTER

22 III

Constructions W h e n the T e x t Appears Doubtful CHAPTER

61

IV

Constructions Interfering with the Manifest Purposes of the C o n tracting Parties CHAPTER

V

Admissibility of Preparatory W o r k CHAPTER

95 VI

Versions in Differing Languages CHAPTER

141 VII

T h e " Rule of Liberal Construction " CHAPTER

76

159 VIII

Conclusion

182

BIBLIOGRAPHY

186

INDEX

193

9

TABLE O F CASES CITED PAGI

Abbas Hilmi Pasha v. Great Britain (7 T. A. M. 909) 125 Access to, or Anchorage in, the Port of Dansig of Polish War Vessels, The Case Relating to the (Pub. P. C. I. J. [A/B], No. 43) 39 Acquisition of Polish Nationality, The Case Relating to the (Pub. P. C. I. J. [A/B], No. 7) 27 Administrative Decision No. I of the Mixed Claims Commission between the United States and Germany (M. C. C. [U. S. & Ger.], p. 1) 149 Administrative Decision No. II of the Mixed Claims Commission between the United States and Germany (M. C. C. [U. S. & Ger.], p. 5) 149 Administrative Decision No. VII of the Mixed Claims Commission between the United States and Germany (M. C C. [U. S. & Ger.], p. 273) 48 Alabama Claims, The (1 Moore, Arbitrations, 495, 610) 66 Alaskan Boundary Case, The (S. Doc., No. 162, 58th Cong., 2d Sess., i) 128 Alvarex Y. Sanchez v. United States (216 U. S. 167) 58 Amiable Isabella, The (6 Wheat. 1) 21 Antoine Fabiani Case, The (Ralston, Report of French-Venezuelan Mixed Claims Commission of 1902, p. 81) 48 Aroa Mines Case, The (Ralston, Venezuelan Arbitrations of 1903, P. 344) 45, Si. 58 AsoMura v. Seattle (265 U. S. 332 172, 178 Asherberg Hopwood and Crew, Ltd. v. Quaritsch (5 T. A. M. 332) 49. 59. 139 Banqut p. American Journal of International Law Supplement. B. & P. Bosanquet and Puller, English Common Plea Reports, 3 vols. Clunet. Journal du Droit International (Paris). Crunch. Cranch, United States Supreme Court Reports, vols. 5-13. Dallas. Dallas, Pennsylvania and United States Reports, vols. 1-4. Fed. Federal Reporter (United States). Fed. (2d). Federal Reporter (United States), Second Series. G. C. C. (U. S. & Mex.). General Gaims Commission, United States and Mexico established in pursuance of the Convention of September 8, 1923How. Howard, United States Supreme Court Reports, vols. 42-65. L. N. Treaty Series. League of Nations, Treaty Series, Publication of Treaties and International Engagements Registered with the Secretariat of the League of Nations (London, 1920-). La. Ann. Louisiana Annual Reports. Lloyd. Lloyd's Reports of Prize Cases, heard before and decided by the Right Honorable Sir Samuel Evans etc., reprinted by J . B. Aspinall and E. L. DeHart (London, 1915-1924). Malloy. Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and other Powers, 1776-1909, edited by William Malloy, 2 vols. (Washington, D. C., 1910), S. Doc., No. 348, 67th Cong., 4th Sess. Maine. Maine Reports. Mass. Massachusetts Reports. M.C.C. (U. S. & Ger.~). Mixed Claims Commission, United States and Germany, Administrative Decisions and Opinions in Individual Lusitania Claims and Other Cases, 2 vols. (Washington, D. C „ 1925-1926). Moore, Arbitrations. Moore, History and Digest of International Arbitrations, H. Misc. Doc., No. 212, 53rd Cong., 2nd Sess., 6 vols. (Washington, D. C., 1898). Moore, Digest. Moore, Digest of International Law, H. Doc., No. 551, 56th Cong., 2nd Sess., 8 vols. (Washington, D. C., 1906). Moore, International Adjudications. Moore, International Adjudications, Modern Series, vols. 1-4 (New York, 1931). 17

i8

LIST

OF

ABBREVIATIONS

N. Y. New York Court of Appeals Reports. N. Y. Sup p. New York Supplement Reports, National Reporter System. Pac. Pacific Reporter, National Reporter System. Pub. P. C.I. J. ( A / B ) . Publications of the Permanent Court of International Justice, Series A / B : Collection of Judgments, Orders, and Advisory Opinions, Nos. 1-50 (Leyden, 1922-1932). The original Series A and Series B are now combined and re-numbered. Pub. P. C.I. J. ( C ) . Publications of the Permanent Court of International Justice, Series C : Acts and Documents Relating to Judgments and Advisory Opinions Given by the Court, Nos. 1-58 (Leyden, 1922-1932). Pub. P.C.I. J. (D). Publications of the Permanent Court of International Justice, Series D : Statutes and Rules, etc., Nos. 1-6 (Leyden, 1922-1932). Pub. P.C.I. J. (E). Publications of the Permanent Court of International Justice, Series E : Annual Report, Nos. 1-8 (Leyden, 1925-1932). Pub. P. C.I. J. ( F ) . Publications of the Permanent Court of International Justice, Series F : Index, Nos. 1-2 (Leyden, 1927, 1932). RGSt. Entscheidungen des Reichsgerichts in Strafsachen (Leipzig, 1880-). Rob. Ecc. Robertson's English Ecclesiastical Reports, 2 vols. So. Rep. Southern Reporter, National Reporter System. Sup. Ct. Supreme Court Reporter, National Reporter System. T. A. M. Recueil Des Decisions Des Tribunaux Arbitraux Mixtes, Institues Par Les Traites De Paix, 8 vols. (Paris, 1922-1930). U. S. Treaties. Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and Other Powers, vol. 3, 1910-1923 (Washington, D. C., 1923). Wall. Wallace, United States Supreme Court Reports, vols. 68-90. Wheat. Wheaton, United States Supreme Court Reports, vols. 14-25.

C H A P T E R

I

INTRODUCTION

THE interpretation of treaties is, perhaps, one of the most confused subjects in international law to-day. M a n y a publicist, 1 influenced by the great classics of Grotius * and Vattel, 1 seems inclined to over-emphasize the classical canons of construction without carefully examining their practical usefulness. Jurists and judges, trained in various systems of private law, are not infrequently prejudiced by rules of their own judicial systems. Even careful students of international law, who have spent years in analyzing judicial decisions of international and national tribunals, are sometimes misled by a mere dictum. Consequently, conflicting and even contradictory views are expressed on the subject; and this state of confusion needs immediate clarification. Needless to say, classical canons of construction are frequently not observed in international practice; elaborate and arbitrary rules of private law are not necessarily applicable to an international procedure; and undue emphasis on a dictum sometimes leads to erroneous conclusions. In view of these circumstances, the author proposes in this study to treat the subject scientifically by analyzing the decisions of international tribunals and also a few instructive cases decided by national courts on interpretation of treaties, to see, 1

H y d e , International

United 2

States

Law

Chiefly

as Interpreted

and Applied

by

the

( B o s t o n , 1922), vol. ii, p. 61 et seq. is a notable exception.

Grotius, The Rights

of War and Peace

( L o n d o n , 1 9 0 1 ) , bk. ii, ch. x v i ,

sec. v. 3

V a t t e l , The Law of Nations,

Joseph Chitty, ed. (Philadelphia, 1 8 6 1 ) ,

bk. ii, ch. x v i i , sees. 290 et seq. 19

TREATY

INTERPRETATION

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TRIBUNALS

in each case, what issues were actually involved, how they were decided, and what methods of approach were used by the tribunal in handling the case. The author hopes that by this method he may be able to draw from judicial practices accurate conclusions on the interpretation of treaties. Before examining the cases, it is useful, as a preliminary, to study the nature of legal interpretation. According to Wigmore:4 The process of interpretation, then, though it is commonly simple and unobserved, is always present. The method of it consists in ascertaining the actor's associations and connections between the terms of the act and the various possible objects of the external world. . . . It is, in a sense, the completion of the act; for without it the utterance, whether written or oral, must remain vain words. If a person could be content with proclaiming his contracts at the top of a mountain, or nailing his deeds to a garden gate, he would not need to be concerned with the process of interpretation. But deeds and contracts and wills, if they are not to remain empty manifestoes, must be enforced. They must be applied to external objects. This seems to suggest that the object of legal interpretation is simply to find out the actor's association between the terms of the act and the various possible objects of the external world. A n d the method, of course, is scientific proof. In other words, the process of legal interpretation is simply to ascertain by means of evidence 8 the sense actually attached to the terms by the framers of the instrument. 4 Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Boston, 1905), vol. iv, sec. 2458, p. 3470. 6 Common law, however, does not allow ample freedom in seeking evidence. The development of the jury system has necessitated the adoption of elaborate rules of evidence. The rule against disturbing a clear meaning by introducing extrinsic evidence is particularly interesting to students of legal interpretation. Nor is the French law without its difficulties regarding the freedom

INTRODUCTION

21

This sense agreed upon in fact by the parties is, however, distinct from the volition of the parties to use a particular word in the treaty. " T h e will to utter a specific word is one thing, and the fixed association of that word is another thing." 6 Negotiators may have intended to include many things in the treaty, but owing to considerations of circumstances of the time, these may not have been embraced in the final agreement. In such cases, the duty of the tribunal, as an interpreter of treaties, seems to be to find out precisely what was actually agreed upon by the parties, but not to add anything to it. In case we should find judges or tribunals, in ascertaining the sense attached by the parties to words used in a treaty, not entirely free from references to canons of construction of Vattel or other publicists, it would seem judicious to exercise strict scrutiny in order to distinguish a dictum from the actual basis of the decision and to see whether the issues involved were decided with or without possible influence o f the dictum. This is what the author proposes to do in analyzing judicial decisions and opinions. In the following chapters, cases will be studied and analyzed in the manner proposed, and for convenience o f discussion, cases wherein similar methods of interpretation were used will be grouped together. of seeking evidence. For instance, a principle which guides the decision might strike English lawyers as odd, viz., that if the document has been prepared before a notary, it must be construed in its strict legal sense, for he is held an expert using words in their technical sense. See also The French Civil Code (as amended up to 1906), E. B. Wright's translation (London, 1908), translator's preface, pp. vi-viii. • W i g m o r e , op. cit., vol. iv, sec. 2459, p. 3473. Isabella, 6 Wheat. 1.

See also The

Amiable

C H A P T E R

II

R E S P E C T FOR " C L E A R M E A N I N G "

THE first problem we are going to investigate in this study deals with respect for " clear meaning " of the text of an article in treaty interpretation. Under what circumstances do tribunals consider the meaning of the terms of a treaty " clear" ? T o what extent is this " clear meaning" respected by tribunals in interpreting treaties? Is this " clear meaning " of the text allowed to override extrinsic evidence pointing to a contrary conclusion? Is this " clear meaning " preferred to arguments in favor of imposing the minimum burden upon states whose exercise of sovereignty seems to be limited by the textual form of the agreement? These are a few pertinent questions, the answers to which we should like to find out from judicial practices. The terms " clear meaning ", " plain terms ", " natural meaning" (sens naturel), and "ordinary meaning" are frequently used by tribunals to denote the sense of certain words, as given by common usage, which, when read in a text, seems suggestive of an unambiguous design of the contracting parties in regard to the matters stipulated in the treaty. But do contracting parties always use terms in the sense given by common or normal usage ? Are they not free to agree to a special sense for the terms they use if they choose to do so ? International law does not provide criteria for terms according to which words must be used in a treaty; nor are tribunals ever given the right to correct or overrule the sense adopted by contracting parties. The function of a tribunal in interpreting treaties is simply to find out what 22

RESPECT

FOR " CLEAR MEANING "

23

the contracting parties actually agreed upon when they used certain words in a treaty. With this in mind we may proceed to examine judicial decisions and arbitral awards with a view to finding out when and how far the " clear meaning " is considered by tribunals as expressing the design of the contracting parties and whether the " clear meaning " may be contradicted by other evidence. T H E S. S.

WIMBLEDON

The S. S. Wimbledon 1 was the first case submitted to the Permanent Court of International Justice for a decision. The Wimbledon, an English steamship chartered by the French firm Les Affréteurs réunis, was refused free access to the Kiel Canal by the German authorities on March 21, 1921, while she was proceeding to Danzig with a cargo of munitions and artillery stores. The French Government protested on the ground that Article 380 of the Treaty of Versailles entitled the vessel to go through the Canal. The German Government contended that inasmuch as the cargo consisted of contraband destined for Poland, then at war with Russia, its transit through the Canal was rightfully prohibited by the German Neutrality Order of July 25, 1920, and that Article 380 of the Treaty of Versailles should not be construed to be applicable in time of war. The case was submitted to the Court by the Principal Allied Powers, and the Court was confronted with the interpretation of the following clause provided in Article 380 of the Treaty of Versailles : The Kiel Canal and its approaches shall be maintained free and open to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality. The court decided on June 28, 1923, that the terms of 1 Pub. P. C. I. J. ( A / B ) , No. 5.

TREATY

INTERPRETATION

BY

TRIBUNALS

the Article were "categorical" and gave rise to no doubt; that under the new régime of the Treaty, Germany could defend herself against her enemies by refusing access to their vessels; that if conditions of access to the Canal were to be modified in the event of a conflict between powers remaining at peace with Germany, " t h e Treaty would not have failed to say so " ; and that this omission was " no doubt intentional ". The Court's conclusion that the Article was designed to facilitate access to the Baltic by establishing an international regime and consequently to keep the Canal open at all times to foreign vessels of every kind, except those of the enemies of Germany during war, appeared with " still greater force " from a comparison of the wording of the Article with that of the other Articles of Part X I I of the Treaty of Versailles (dealing with Ports and Waterways). The provisions relating to the Kiel Canal in the Treaty were said to be " therefore self-contained ", and, if they needed to be supplemented and interpreted by the aid of the Articles from Part X I I of the Treaty, they would lose their " raison d'être."

In other words, the Court was convinced that the terms of Article 380 were " clear " and " self-contained " in themselves and that a comparison with other provisions found in Part X I I further bore out this conclusion. The Court, in the course of its opinion, recognized that Germany had been obliged to submit to an important limitation of the exercise of its sovereign rights, and said that this fact constituted " a sufficient reason for the restrictive interpretation, in case of doubt, of the clause which produces such a limitation ". But the Court felt obliged to stop at the point where the socalled restrictive interpretation would be " contrary to the plain terms of the Article " and would destroy what had been " clearly granted. 2 2

Ibid., p. 25.

RESPECT

FOR " CLEAR

MEANING "

25

Here was no conflict between " clear meaning " and extrinsic evidence. Germany offered slight evidence which was not deemed by the Court to establish the fact that the Contracting Parties agreed to attach a narrower signification to Article 380 * and which was not discussed in the judgment. The Court adverted also to two other considerations which might have influenced its decision, namely, that Germany violated no neutral duty by allowing the Wimbledon to go through the Canal, and that Germany did not claim the right to close the Canal to belligerent warships during the RussoPolish war. Judges Anzilotti and Huber dissented * on the ground that clauses relating to the Kiel Canal contemplated only a régime applicable to normal circumstances, namely, a state of peace, without affecting the rights and duties of neutrality. They declared that in interpreting treaties " account must be taken of the complexity of interstate relations and of the fact that the contracting parties are independent political entities." 8 They conceded that "when the wording of a treaty is clear, its 1

See oral argument of M. Basdevant with reference to circumstances leading up to the drafting of the Articles relating to the Kiel Canal, Pub. P. C. I. J. ( C ) , No. 4, pp. 212-214. After having maintained that the Article, interpreted according to its natural meaning, was clear, M. Basdevant asked: " I s it possible to find in the circumstances surrounding the drafting of the Treaty of Versailles any reasons for giving a different interpretation? " He noted that in the course of the drafting of the Treaty of Versailles certain changes were introduced in the wording of one of the Articles relating to the Kiel Canal, but that in adopting these changes the Allies made it specially clear that they did not design to change in any way the principles already set o u t He found nothing therefore which could be used to support the German contention that the Allies designed to attach a limited signification to provisions involving limitations on German sovereignty. See also statement in argument of M. Schiffer, ibid., p. 342. « Pub. P. C. I. J. ( A / B ) , No. 5. P. 358

Ibid., p. 36.

26

TREATY

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TRIBUNALS

literal meaning must be accepted as it stands, without limitation or extension." But they also maintained : * It is equally true that words have no value except in so far as they express an idea ; but it must not be presumed that the intention was to express an idea which leads to contradictory or impossible consequences. The purely grammatical interpretation of every contract, and more especially of international treaties, must stop at this point. They said that, if Article 380 should be taken in its "strictly literal sense " , it would follow that Germany as a belligerent would have to allow the Canal to be free and open to the vessels of neutral nations at peace with Germany, an obligation hardly conceivable without a corresponding obligation on the part of the states with which Germany was at war to respect the right of free passage through the Canal. They cited the fact that the Contracting States to the Conventions relating to the Suez and Panama Canals, which undertook to leave open a maritime waterway in time of war, had taken care to ensure respect for it during that period. The omission of such an important provision would, they deemed, be difficult to understand if the Treaty of Versailles was designed to institute a similar regime. They concluded : The words " nations at peace with Germany ", by no means necessarily mean that States which are not at war with her are entitled to avail themselves in all possible circumstances of the provisions of Article 380 and the following Articles; they rather mean that a state of peace is the condition upon which the application of these provisions is dependent. . . . It appears to us . . . difficult to believe that there was an intention to prohibit Germany from taking the measures necessary to protect the paramount interest which may be at stake for her in the event of war or neutrality, whilst her right . . . to protect relatively unimportant interests was formally recognized. «Ibid. •> Ibid., pp. 38, 40.

RESPECT

FOR

" CLEAR

MEANING

"

27

The legal status of the Kiel Canal, therefore, resembles that of the internal navigable waterway of international concern. Such indeed would appear to have been the intention of the authors of the Treaty of Versailles in so far as it can be discerned from the correspondence exchanged on the subject between the two Contracting Parties. An indication in the same direction might also be seen in the fact that whilst Germany was, under Clause 25 of the armistice conditions of November n t h , 1918, debarred from pleading neutrality, this provision does not reappear either in the text of the Treaty or in the notes exchanged. The difference between the views of the majority and those of the t w o dissenting judges lies in the methods of approach. T h e majority thought that the language of the Article clearly pointed to a conclusion which was also supported by other considerations; therefore they refused to accept the German contention for restrictive interpretation. T h e two dissenting judges thought that treaties should be interpreted in the light of the objective circumstances in order to ascertain the sense attached to the terms by the Contracting Parties and that a " clear meaning " should not be followed when it led to contradictory or impossible consequences. T h e question of admissibility of extrinsic evidence to contradict the " clear meaning " of the text was not raised in this case. T h e majority did not oppose the submission or consideration of the slight evidence offered by Germany, but rather deemed it insufficient to establish the fact that the Parties had agreed to a sense narrower than that which the " clear meaning " of the text seemed to suggest. ACQUISITION OF POLISH NATIONALITY

In the seventh advisory opinion, 8 the Permanent Court of International Justice was confronted with the question of in» Pub. P. C. I. J. ( A / B ) , No. 7-

28

TREATY INTERPRETATION

BY

TRIBUNALS

terpreting Article 4 of the Treaty of Minorities signed by the Allied and Associated Powers and Poland on June 28th, 1 9 1 9 . Article 4 of the said Treaty dealt with the acquisition of Polish nationality by persons born in Poland of foreign origin. The Article provided: Poland admits and declares to be Polish nationals ipso facto and without the requirement of any formality persons of German, Austrian, Hungarian or Russian nationality who were born in the said territory of parents habitually resident there, even if at the date of the coming into force of the present treaty they are not themselves habitually resident there. The Court first reviewed the Polish contention that the Article applied only to individuals of German origin born in Poland whose parents were habitually resident there both at the date of the coming into force of the Treaty ( J a n u a r y 1 0 , 1 9 2 0 ) and at the date of the birth of the individual. T h e Court said that such a condition was " in contradiction with the terms of the provision " which Poland claimed to interpret and was not supported by precedents supplied by international practice; and that, when saying that persons born in the territories ceded to Poland of parents habitually resident there were admitted to Polish nationality, the Treaty " clearly " took the date of birth of those persons as a basis and established a close relationship, an international synchronization between their birth and the habitual residence of their parents, and that to require further the continuance or reestablishment of this habitual residence at the time of the coming into force of the Treaty would amount to " a n addition to the t e x t " and would go " beyond its terms " . " W h y should the fact that the parents had been habitually resident at a previous period change the natural meaning of the w o r d s ? " continued the Court. " S i n c e the choice lay between the two systems which in various forms and com-

RESPECT

FOR " CLEAR

MEANING

"

29

binations have always been adopted when it has been necessary to determine the effect of a territorial adjustment upon the nationality of the inhabitants of the territories annexed or ceded, the Treaty adopted both the principle of origin and the principle of habitual residence; it has combined these t w o systems." 9 T h e Court then compared the language of the Article with that of Article 3 which preceded the Article at issue and found its conclusions strengthened. Then it declared: 1 0 To require in addition that the parents should have renewed or preserved their habitual residence in the ceded territories at the time when the treaties of minorities came into force would be to lay down a useless condition not to be found in any treaty of annexation hitherto concluded. The Court's task is clearly defined. Having before it a clause which leaves little to be desired in the nature of clearness, it is bound to apply this clause as it stands, without considering whether other provisions might with advantage have been added to or substituted for it. The " clear meaning " of the Article, in this case, when read in the light of the principles governing the effect of a territorial adjustment upon the nationality of inhabitants of ceded territories, appeared to the Court (a unanimous one) to show clearly the design of the Contracting Parties to adopt, as a basis for determining the nationality of the inhabitants, an " international synchronization" between their birth and the habitual residence of their parents. T h e Court, under such circumstances, refused to accept the Polish construction, which appeared to be an addition to and in contradiction of the " clear meaning " of the Article and which was, moreover, not supported by precedents of international practice. 8 10

Ibid., p. 18. Ibid., p. 20.

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T H E E X C H A N G E OF GREEK A N D T U R K I S H P O P U L A T I O N S

In the tenth advisory o p i n i o n 1 1 the Permanent Court of International Justice w a s called upon to interpret the second Article of the Convention of January 30, 1923, signed at Lausanne by Greece and T u r k e y .

T h e Article P r o v i d e d :

The following persons shall not be included in the exchange provided for in Article 1 : 1 2 ( a ) The Greek inhabitants of Constantinople. ( b ) T h e Moslem inhabitants of Western Thrace. A l l Greeks who were already established before the 30th of October, 1918, within the areas under the Prefecture of the City of Constantinople, as defined by the law of 1912, shall be considered as Greek inhabitants of Constantinople. A l l Moslems established in the region to the east of the frontier line laid down in 1913 by the Treaty of Bucharest shall be considered as Moslem inhabitants of Western Thrace. T h e most important w o r d in the whole Article w a s the term " established " , the signification of which the C o u r t was called upon t o ascertain.

T h e Council of the L e a g u e of

Nations in requesting an advisory opinion put the question in the f o l l o w i n g manner:

18

W h a t meaning and scope should be attributed to the word " established " in Article 2 of the Convention of Lausanne of January 30th, 1923, regarding the exchange of Greek and Turkish populations, . . . ? T h e C o u r t pointed out that it w a s not asked to ascertain the meaning and scope o f the w o r d " established " in the abstract, but " the meaning and scope of that w o r d in Article 11

Pub. P. C. I. J. ( A / B ) , No. 12.

12

Article I provided for the reciprocal compulsory exchange of Greek

and Turkish populations living in each other's territory. of the Convention, see 32 L. N. Treaty 13

Series

Pub. P. C. I. J. ( A / B ) , No. 12, p. 7.

75.

For the text

RESPECT

FOR " CLEAR MEANING "

31

2 of the Convention of Lausanne ". It said that the Convention was drawn up in French and " therefore regard must be had to the meaning of the disputed term in that language " ; that according to both the etymology of the word and the current practice of the language, the term embraced residence and stability (meaning an intention to continue the residence in a particular place for an extended period) ; and that " in the present case, the word " établissement " naturally embraces those inhabitants who on October 30th, 1918, were already residing at Constantinople with the intention of remaining there for an extended period." 14 Having thus reached its conclusion about the sense of the term " établissement " as employed by the Contracting Parties the Court proceeded to discuss the question whether the situation contemplated by that word should be determined by reference to the laws in force in the two countries concerned. The Court saw no reason why the local tie indicated by the word " established " should be determined by the application of some particular law ; on the other hand, it might well be that the Convention contemplated a mere " situation of fact " sufficiently defined by the Convention itself without reference to national legislation. The Court thought that a reference, which was not expressly provided for in the Convention itself, to Turkish and Greek legislation would lead to a division of population being carried out in a different manner in Turkey and in Greece, contrary to the spirit of the Convention, the " intention " of which was undoubtedly to pro1 4 The Court also observed that, while the idea of " établissement " was somewhat similar to the conception of domicile in several modern legal systems, the two terms were by no means identical. "Établissement " referred to " a situation of fact ", while domicile referred to a legal connection according to domestic law. The term used in Article 2 contemplated only a question of fact, serving to distinguish between the exchangeable and the non-exchangeable parts of Greek and Turkish populations. See ibid., pp. 17-20.

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vide by means of the application of identical and reciprocal measures in the territories of the two States, that the same treatment be accorded to the Greek and Turkish populations. The Court found that, above all, there was no indication whatsoever that the authors of the Convention, when they adopted the word, had in mind national legislation at all. 15 Everything, " therefore ", appeared to the Court to indicate that the Article was not designed to have any reference to national legislation, and the Court declared that the Article was " self-contained " and that, in interpreting it, the " natural meaning of the words " as already explained should be relied upon. In regard to the Turkish contention that there should be deemed to be an implied reference to local legislation, since a contrary solution would involve consequences affecting Turkey's sovereign rights, the Court said that it was impossible to admit that a convention which, construed according to its natural meaning, created equal and reciprocal obligations, infringed the sovereign rights of the contracting parties, and that, besides, it was an attribute of sovereignty to enter into contractual relations with other states. Thus, the Court drew from the natural meaning of the word " établissement " in the French language a conclusion which was also fortified by other considerations, and, in reaching this conclusion, the Court was not impressed by the Turkish contention that such a conclusion would infringe upon Turkey's sovereign rights, especially when evidence in support of the construction suggested by Turkey was totally lacking. 18 15

Ibid., p. 20.

« Ibid.

RESPECT

FOR

" CLEAR

MEANING

"

33

POLISH M A I L SERVICE I N DANZIG

In the eleventh advisory opinion 17 the Permanent Court of International Justice was called upon to decide whether, under the Treaty of Versailles and other treaties between Poland and the Free City of Danzig, Poland had a right to set up mail boxes in the Free City for mail for Poland and to have mail for Poland collected and mail from Poland distributed by postmen in the Polish postal service in Danzig for the use not only of the Polish authorities and officials but also of the public. The relevant provisions concerned were Article 104 of the Treaty of Versailles, Articles 29-32 (inclusive) of the Treaty of Paris between Poland and the Free City, signed on November 9, 1920, and Articles 149-168 and Article 240 of the Agreement of Warsaw between Poland and the Free City, signed on October 24, 1921. Under Article 29 of the Treaty of Paris Poland was entitled " to establish in the Port of Danzig a post, telegraph and telephone service communicating directly with Poland." 14 Poland had a post-office in the Heveliusplatz in the City of Danzig, and also set up letter boxes at various points outside the Heveliusplatz intended to receive postal matter to be sent to Poland via the Polish postal service. Poland also claimed to be entitled to deliver outside the Heveliusplatz postal matter brought from Poland by the Polish postal service. This right to collect and deliver postal matter, Poland claimed, extended not only to Polish officials but also to the public. A f t e r having reviewed the facts of the case, the Court declared:" " P u b . P. C. I. J . ( A / B ) , No. is. 18

"

F o r the text of the Treaty, see 6 L. N. Treaty Series 190. Pub. P. C. I. J. ( A / B ) , No. is, p. 33-

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It will be seen that there is no trace of any provision confining the operation of the Polish postal authorities to the inside of the postal building. The postal service which Poland is entitled to establish in the Port of Danzig must be interpreted in its ordinary sense so as to include the normal functions of a postal service as regards the collection and distribution of postal matters outside the post-office. . . . Indeed, any limitations or restrictions in this respect would be of so exceptional a character that they cannot, in the absence of express restrictions, be read into the text of the treaty stipulation. The Court then compared that Article with the preceding and subsequent articles and concluded that it " should be interpreted in the sense including the things enumerated therein, and not in the sense of excluding the postal service from exercising its normal functions in collecting and delivering postal matter outside the postal building ", and that " in the absence of special provisions to the contrary the post, telegraph and telephone communications must be taken to be included for the public in the ordinary way." Having thus deduced the sense of Article 29 of the Treaty of Paris from the text of the instrument itself, the Court observed that it had been urged on behalf of Danzig that Poland's postal rights in Danzig constituted a grant in derogation of the postal monopoly of Danzig and that grant should be strictly construed in favor of Danzig. In the opinion of the Court, however, the rules as to a strict or liberal interpretation of treaty stipulations were to be applied only in cases where ordinary methods of interpretation had failed; and the Court deemed it a "cardinal principle" of interpretation that words should be interpreted in the sense which they would normally have in their context unless such interpretation would lead to something unreasonable and absurd. 10 *> Ibid., p. 39.

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In this case, the conclusion drawn from the " ordinary sense " of terms used in the text was also supported by reference to the various preceding and subsequent articles taken by themselves and in their relation one to another. Having reached this conclusion, the Court said that there was no occasion to consider the argument f o r strict interpretation which could be resorted to only when ordinary methods of interpretation had failed. FRONTIER BETWEEN T U R K E Y AND IRAQ

In the twelfth advisory opinion 21 the Permanent Court of International Justice was requested by the Council of the League of Nations to answer the following question: 2 2 What is the character of the decision to be taken by the Council in virtue of Article 3, paragraph 2, of the Treaty of Lausanne; is it an arbitral award, a recommendation, or a simple mediation ? T h e said paragraph of the Article provided: 2 3 The frontier between Turkey and Iraq shall be laid down in friendly arrangement to be concluded between Turkey and Great Britain within nine months. In the event of no agreement being reached between the two Governments within the time mentioned, the dispute shall be referred to the Council of the League of Nations. The Turkish and British Governments reciprocally undertake that, pending the decision to be reached on the subject of the frontier, no military or other movement shall take place which might modify in any way the present state of territories of which the final fate will depend on the decision. A f t e r having reviewed the relevant facts, the Court said: " « Pub. P. C. I. J. (A/B), No. 17. 22

Ibid., p. 1.

23

Cited ibid., p. 14.

24

Ibid., p. 19.

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The Court, must, therefore, in the first place, endeavor to ascertain from the wording of this clause what the intention of the Contracting Parties was: subsequently, it may consider whether—and if so, to what extent—factors other than the wording of the Treaty must be taken into account for this purpose. The Court concluded that the term " decision", agreed to by the Contracting Parties, signified a " definitive and binding solution " the final determination of the frontier " , to be sought from the Council of the League of Nations in case the Parties should fail to agree in their friendly negotiations. The Court stated its reasons for this conclusion a s : first, the terms used ( " l a y d o w n " , "fixer", "determiner") were " o n l y to be explained by an intention to establish a situation which would be definitive " ; secondly, the very nature of a frontier and of any convention designed to establish frontiers between two countries " imports that a frontier must constitute a definitive boundary line through its length " ; and thirdly, by analyzing and comparing the various paragraphs and sub-paragraphs the Court found that it was " clear " that the object of the Article (devoted to territorial clauses) was to establish a continuous and definitive frontier first by agreement between the Parties and, failing that, by the intervention of a third party, the Council of the League of Nations, on whose decision the " final fate " of the disputed territory was to depend. 25 The Turkish Government attempted to introduce extrinsic evidence 28 leading to a different conclusion. The Court considered the evidence in detail and held that it had no bearing on the Article in dispute. In this case the Court held that the adoption of the word 25

Ibid., pp. 20-21.

See infra, p. 97 in connection with the use of " preparatory w o r k " in treaty interpretation. 2t

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" decision " by the Contracting Parties in an Article having for its object a solution of the frontier question and providing as it did a definite procedure therefor, indicated clearly that they contemplated a definitive and binding settlement. T h e only extrinsic evidence introduced by Turkey to contradict this " clear meaning " was found by the Court to be irrelevant, because it did not refer to the Article in question. 21 Besides the five cases already considered wherein the Court gave elaborate discussions concerning the " clear meaning " of words used in an Article of a treaty, there are other decisions and advisory opinions in which the Court showed a somewhat similar attitude toward treaty provisions, a perusal of which would seem to indicate sufficiently the unambiguous design of the contracting parties. Thus in connection with the interpretation of the Treaty of Neuilly, 24 the Court said that the definitions relating to each category of claims men2 7 The Court also said in this connection, perhaps by way of a dictum, that, moreover, the construction suggested by the Turkish Government would be " incompatible with " the Court's interpretation of the Article already formed " from the grammatical and logical construction of the Article itself " as well as " the role assigned to the Article in the Peace T r e a t y " . Pub. P. C. I. J. ( A / B ) , No. 17, p. 23. This statement will be discussed later in connection with the question of admissibility of " preparatory work ", infra, p. 98. 28 Pub. P. C. I. J. ( A / B ) , No. 11. provided:

Paragraph 4 of the said Annex

" A l l property, rights and interests of Bulgarian nationals within the territory of any Allied or Associated Power, and the net proceeds of their sale, liquidation, or other dealing therewith may be charged by that Allied or Associated Power in the first place with payment of amounts due in respect of claims by the nationals of that Allied and Associated Power with regard to their property, rights and interests, including [followed by enumeration of categories of claims, and the organization of an Mixed Arbitral Tribunal] . . . They may be charged in the second place with payment of amounts due in respect of claims by the nationals of such Allied and Associated Power with regard to their property, rights and interests in the territory of other enemy powers, in so far as those claims are otherwise unsatisfied."

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tioned in the first sub-paragraph of paragraph 4 of the Annex following Article 179 of the Treaty of Neuilly should be understood in their " natural sense " ; and when it came to Article 121 (dealing with Bulgarian reparation and providing for a total capital sum limit for such reparation) of the Treaty the Court found that it was drawn up in such general terms both ratione materiae and ratione temporis, that the Article quite " naturally " included reparations for losses and sacrifices involved by military operations previous to the declaration of war. In the Case of the S. S. Lotus,** which will be studied later in detail, 40 the Court said that the words " principles of international law ", as ordinarily used, could only mean international law applied between all nations belonging to the community of states; " this interpretation is born out by the context of the Article itself." In the case concerning the minority schools in Upper Silesia " the controversy between Germany and Poland was, among other things, over the interpretation of Article 131 of the Minority Treaty between the two countries, which provided that every person was to have " unfettered liberty to declare whether he does or does not belong to the minority " and that his declaration " shall not be subject to any verification or pressure, etc. by the authorities." This provision was equally applicable to the declaration of choice of language for a child, by the person responsible for it. T h e question was whether this declaration was designed to ascertain a fact or to express a wish. The Court said that the Article contemplated a declaration which was to ascertain a fact and not an expression of an intention or of a wish; " the text of the Article clearly bears out this meaning." 82 Finally in the case concerning 29

Pub. P. C. I. J. ( A / B ) , No. 22.

80

Infra, p. 99-

31

Pub. P. C. I. J. ( A / B ) , No. 29.

82

Ibid., p. 39-

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access to, or anchorage in, the Port of Danzig of Polish war vessels," the Court was confronted with the issue whether Article 104, paragraph 2, of the Treaty of Versailles which ensured to Poland " without any restriction the free use and service of all waterways, docks, basins, wharves and other works within the territory of the Free G t y necessary for Polish imports and exports" included the access to, or anchorage in, the Port of Danzig of Polish war vessels. The Court said that the " natural interpretation " of these words was that Poland was only to enjoy the unfettered liberty of using the Port and its equipment for " commercial " purposes, and that the provision could not be held to confer on Poland a right of access and anchorage for war vessels. In these four cases just discussed, although the Court did not give elaborate discussions in regard to its attitude toward the " clear meaning ", it in fact followed the natural import of the terms used, as conveyed by common usage,—a method of approach, in its essence, resembling that used in the Wimbledon Case. In its brief experience in treaty interpretation the Permanent Court of International Justice has had frequent occasions to consider the " clear meaning " or " sens naturel" of words of the text of an article. This " clear meaning " is usually supported by other considerations sometimes external to the text in question, and the Court has shown its readiness to rely upon the " clear meaning" in cases where evidence pointing to a contrary conclusion was lacking. On a few occasions when parties attempted to introduce external evidence to contradict the " clear meaning " of the text, the Court took care to examine such evidence and found nothing therein sufficiently convincing to cause the Court to give an interpretation other than that which due respect for the " clear meaning " of the language demanded. There has not 33

Pub. P. C. I. J. ( A / B ) , No. 43.

4°

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in fact, occurred a single instance in which any real conflict between the " clear meaning " and extrinsic evidence leading to divergent conclusions existed, although a dictum sometimes might seem to give a different impression. When the issue was a choice between the " clear meaning " of the text, which, if followed, might involve tremendous sacrifice on the part of a contracting party or parties, and the argument in favor of imposing the minimum burden upon states on the ground that the " clear meaning " seemed to lead to consequences involving sacrifice probably not contemplated by the contracting parties, the Court on the whole seemed inclined to the view that the natural meaning of the words used, if not contradicted by evidence, should not be compromised by a consideration of the nature or scope of sacrifices involved. This view was deemed applicable by the Court even to cases involving " important limitations " on the exercise of sovereign rights. Besides the utterances of the Permanent Court of International Justice, there are other instructive cases, handed down by international or national tribunals, relating to respect for " clear meaning " of the text in treaty interpretation. The following is a selection of the most important ones, that have been examined. T H E DAVID J .

ADAMS

In the case of the David J. Adams'* decided on December 9, 1921, by the American and British Claims Arbitration Tribunal created in pursuance of the special agreement signed at Washington, August 18, 1910, the pertinent facts were these. An American-owned fishing schooner, the David J. Adams, was confiscated by the British Vice-Admiralty Court at Halifax on the ground that the schooner took bait from " American and British Claims Arbitration, Awards 1S4 (Washington, D. C., 1924), Claim No. 18.

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Annapolis Basin, N o v a Scotia, in violation of the Convention between Great Britain and the United States, signed at London on October 20, 1 8 1 8 , which provided : " The United States hereby renounce forever any liberty, heretofore enjoyed or claimed by the inhabitants thereof, to take, dry or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's Dominions in America not included within the above-mentioned limits ; provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. According to the British view, the stipulation that American fishermen " shall " be admitted to enter the Canadian bays and harbors f o r shelter, repairing damages, purchasing wood and obtaining water and " f o r no other purpose whatever " meant that the American fishermen had no access to the said bays and harbors f o r purchasing bait. On the other hand, the United States contended that the said stipulation only secured rights f o r Americans but it did not prohibit the right of access f o r American fishermen f o r other purposes. Canada might very well prohibit the entrance as such; but as long as entrance f o r the purpose of purchasing bait was not prohibited by Canadian legislation, " it must be considered as legal " exercise of the right of access belonging to any American ship. The Tribunal considered that a stipulation which said that fishermen " shall be admitted " f o r certain enumerated purposes and " f o r no other purpose whatever seemed to be " perfectly clear " and to mean that f o r the specified purposes the fishermen " shall " be admitted and f o r any other purpose 85 Article I of the Convention Respecting Fisheries, Boundary and the Restoration of Slaves, 1 M alloy 631.

42

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they had no right to be admitted. " It is difficult", continued the Tribunal, " to contend that by such plain words the right to entrance for purchasing bait is not denied. N o sufficient evidence of contrary intention of the H i g h Contracting Parties is produced to contradict such a clear wording." W h e n the American Government contended that the literal meaning of an isolated clause was not necessarily the meaning really understood by the Parties, the Tribunal said that " such an intention of the negotiators to contradict the literal meaning of the Treaty did not appear in the evidence presented in the case." a " The decision of this case thus rested on the fact that there was no evidence to contradict the " clear meaning " of the text. 87 T H E BETSEY

In this case 3 8 the opinion of Mr. Pinkney, a member of the arbitration commission created in pursuance of Article V I I of the Treaty of Amity, Commerce and Navigation, signed at London, November 19, 1794, between Great Britain and the United States, is instructive in regard to the extent to which " clear meaning " is respected in treaty interpretation. Article V I I of the Treaty provided: 1 8 38 American and British Claim No. 18, p. 8.

Claims

Arbitration,

Awards

1-84, op.

cit.,

3 7 See also The Horace B. Parker (Fishing Claims, Group 2, Claim No. 76), decided by the same Tribunal, in which it was contended that the phrase " repairing damages " should be construed to limit the permissible repairs to repairs essential to navigation, not including repairs necessary to fishing. The Tribunal said that, as the Treaty secured rights for " American fishermen ", to replace a sail, which had been blown away, seemed " c l e a r l y " within the phrase " repairing damages ". 20 Am. J. Int. L. 378. 38

4 Moore, International Adjudications,

112-119, 194-206, 240-281.

1 Malloy 590, 596; the rest of the Article dealt with the organization sf the Commission for adjudication of such claims. 38

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Whereas complaints have been made by divers merchants and others, citizens of the United States, that during the course of war in which His Majesty is now engaged, they have sustained considerable losses and damages, by reason of irregular or illegal captures or condemnations of their vessels and other property, under color of authority or commissions from His Majesty, and that from various circumstances belonging to the said cases, where adequate compensation for the losses and damages so sustained cannot now be actually obtained, had and received by the ordinary course of judicial proceedings; it is agreed, that in all such cases, where adequate compensation cannot, for whatever reason, be now actually obtained, had and received by the said citizens of the United States in the ordinary course of justice, full and complete compensation for the same will be made by the British Government to the said complaints. T w o questions regarding treaty interpretation arose during the course of proceedings : first, whether the arbitration commission had, without referring further to the Governments, jurisdiction over cases which had already received the judgment of the highest tribunal of Great Britain in matters of prize ; secondly, whether the word " cannot " as used in the Article was to be interpreted to signify the lack of power or competence of the British judicial authorities to give adequate compensation by judicial proceedings. Regarding the first, Mr. Pinkney said that the Commission was, without consulting the High Contracting Parties, the proper judge at least in the first instance of the nature and extent of its powers under the 7th Article of the Treaty, and that the Treaty did give it the power generally to determine its jurisdiction seemed to be " self-evident " , for, without such a power, it would be " extremely obvious " that the authority expressly conferred by the Treaty to decide the merits would be " completely nominal and illusory " , and that it was " too striking to need illustration that the want of power in question would leave the 7th Article of the

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Treaty perfectly lifeless and intrinsically a nullity " . continued: 44

He

A very slight view of the 7th Article will serve to produce a conviction that it intended by its own operation to clothe the Commissioners with active powers—that it is calculated to be in itself an efficacious definitive arrangement. It defines by large and comprehensive terms the complaints to be referred. It contains no indication that the Contracting Parties have not signified their sense explicitly and finally as to claims to be submitted. In short, it purports to be intrinsically adequate to the accomplishment of its own views without referring to any suppletory declarations or contracts as necessary to give it motion or effect. It is a complete operative provision upon the face of it—and any construction which tends to deprive it of all internal vigor is so manifestly repugnant to it that it requires only to be stated in order to be rejected. It will not be alleged that they (powers to decide its own jurisdiction) are declared by the Treaty—for the Treaty in this respect is wholly silent. It contains sufficient to give the power but points out no limitation to which it shall be subject. Certainly nothing can be plainer than that a treaty may give such an authority—and it is equally plain that this Treaty does give it.41 In regard to the second question, he said that the word " cannot" had not in itself any exclusive relation to an impracticability of any particular description, and that, if it was believed to refer to a lack of authority of the British judicial authorities, this belief had no foundation in the " ordinary meaning " of the word, and that to construe a word which stated an impracticability for any cause to mean an impracticability for some special cause would depart from 40

4 Moore, International Adjudications, 196-197.

41

Ibid., p. 203; see also Mr. Gore's opinion, ibid., pp. 182-194.

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the settled import of the term. the Article, he said: 4 2

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In examining the letter of

The provision itself stipulates " that in all such cases, where adequate compensation for the said losses and damages cannot for whatever reason be now actually obtained, . . ." Upon language so clear and definite, it is not easy to make comments with any view to further perspicuity. The narrower construction, sought by the British, was, according to Mr. Pinkney, not only unauthorized by its language but also unsuitable to the subject of it. T H E AROA M I N E S CASE

In the Aroa Mines Case,** decided by the Umpire of the British-Venezuelan Mixed Claims Commission created by the Protocol of February 13, 1903, the question was whether the admission of liability by the Venezuelan Government as stipulated in Article III of the Protocol embraced also damages caused by acts of unsuccessful insurgents. The Article provided: ** The Venezuelan Government admit their liability in cases where the claim is for injury to, or wrongful seizure of property, and consequently the questions which the Mixed Claims Commission will have to decide in such cases will be: (a) whether the injury took place and whether the seizure was wrongful and (b) if so, what amount of compensation is due. The Umpire first gave a few preliminary definitions regarding such terms as " claim ", " injury ", " seizure etc., Ibid., p. 256; see also Mr. Gore's opinion, ibid., pp. 211-239. Ralston, Venezuelan Arbitrations of 1903 (Washington, D. C., 1904), pp. 344-387. 42 43

" Ibid., p. 292. 45

See also The Crossman Case, ibid., p. 298; The de Lemos Case, ibid.,

p. 310.

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and then said that there was " no ambiguity in the language used because there seemed to him on the face of the provisions " nothing to interpret " and " nothing to construe." H e suggested, however, that there might be a " latent ambiguity " beyond the text of the Article and studied carefully the diplomatic negotiations leading up to the signing of the Protocol.* 8 H e found that the German statement referring to " acts of violence on the part of the Venezuelan Government " , with which the British statements were wholly consistent, was conclusive proof of the exclusion of all acts of revolutionaries from the claims and demands contained in the ultimata submitted to the Venezuelan Government by those powers; " that Mr. Bowen, the Venezuelan representative, understood that he was submitting to arbitration only the matters contained in the ultimatum of each of the Allied P o w e r s ; and that President Castro of Venezuela understood that he was admitting the liability of his government only for such claims as were " just." 48 O n the other hand, the Umpire failed to discover " a sentence, a phrase, or a word directly or indirectly making allusion " 49 to acts of revolutionists in the negotiations preceding the signing of the Protocol. Umpire Plumley adverted also to the constitutional provision of Venezuela which did not recognize diplomatic interSee also the Sambiaggio Case, decided by Umpire Ralston of the Italian-Venezuelan Mixed Claims Commission, wherein he said, " a careful examination of the correspondence shows that it did not relate to the questions of liability or nonliability for the acts of insurgents." Ibid., pp. 666-692. Cf. the Kummerow Case, decided by the GermanVenezuelan Mixed Claims Commission, ibid., pp. 526, 549. Cf. also the Mena Case of the Spanish-Venezuelan Commission, ibid., p. 931, and the Padron Case, ibid., p. 923. 48

47

Ibid., p. 373.

48

Ibid.

48

Ibid., p. 383.

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vention in private claims. This provision was well-known to the Powers which demanded that Venezuela should recognize the justice of these claims against the Venezuelan Government, which were later by agreement submitted to arbitration. From all these sources of external evidence the Umpire concluded that Article III of the Protocol did not embrace damages caused by acts of unsuccessful insurgents. The Arao Mines Case is significant from many points of view. In regard to the question of respect for " clear meaning ", it is particularly important, because it illustrates the possibility of a situation where latent ambiguity might exist in spite of a " clear " text and wherein a conclusion drawn from an exhaustive study of external evidence might not have been reached from a mere perusal of the " clear " text of the Article. This case seems to point to the danger of relying only upon the " clear meaning " of a text as a decisive guide to the design of the contracting parties. Similarly, in Sarropoulos v. Bulgarian State,60 decided on February 14, 1927, by the Greco-Bulgarian Mixed Arbitral Tribunal, the phrase " diplomatic or consular claims made before the war " used in Article 179 of the Treaty of Neuillj was interpreted to mean only those claims which were directly or indirectly related to the war, or the settlement of which had been postponed because of the events of the war. This conclusion was based on various sources of external evidence, although the natural import of the terms might embrace other claims not related to the war. In the Lusitania Cases, decided by Umpire Parker of the Mixed Claims Commission between the United States and Germany created under the Treaty of Berlin ( 1 9 2 1 ) , the Umpire observed at one time 51 that the Tribunal could not »0 7 T. A. M. 47" M . C. C. (U. S. & Ger.), p. 31, this statement was made by the

48

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look beyond the " express provisions " or the " clear implications " of the Treaty of Berlin; nevertheless, he did not in fact confine himself to the " clear and unambiguous language " of the provisions, but in interpreting the terms of the Treaty, he frequently referred to evidence external to the text of the instrument 52 Umpire in connection with the question of " exemplary damages ". He also said: " In view of this frank recognition by the Government of the United States of Germany's inability to make to it full and complete reparation for all of the consequences of war, how can it be contended that there should be read into the Treaty an obligation on the part of Germany to pay penalties to the Government of the United States ? " ibid., p. 29. 5 2 In connection with Administrative Decision No. V I I dealing with the claims for loss of earnings, or profits, and for loss or damages in respect of intangible property the Umpire said: " A brief survey of the negotiations and agreements antedating the Treaty of Berlin and upon which it is in .part based will prove helpful in interpreting its terms." Ibid., pp. 273, 309. See also the South Porto Rico Sugar Company Case, ibid., pp. 44, 47. In cases where " clear meaning " is not contradicted by evidence, international tribunals usually follow the "clear meaning" of the text in treaty interpretaton. For instance, in the de Lemos Case, Umpire Plumley, after having defined the word " injury " as a legal wrong, said that " the words in their natural and ordinary sense bear this meaning." Ralston, op. eit., p. 307. Similarly, Umpire Ralston said in the Orinoco Steamship Company Case, while he was defining the word " owned " according to the ordinary meaning, that " in view of the explicit language of the Article quoted above, it [the meaning of the term ' o w n e d ' ] would seem too clear for argument." Ralston, Reports of FrenchVenezuelan Mixed Claims Commission of 1902 (Washington, D. C., 1906), p. 77. In the Antoine Fabiani Case, the same Umpire said that " claims", but not a part thereof, " clearly and definitely" included all claims of Fabiani against Venezuela, ibid., p. 117. In interpreting Article I of the Convention of 1882 between France and the United States, Mr. Aldis said: " But it is upon the plain language of the Convention that we rest this decision." 3 Moore, Arbitrations, 2247. In announcing the award of the boundary dispute between the Republics of Costa Rica and Panama in 1910, Mr. Chief Justice White said: " clear as is the text of the Treaty in question, if there were room for obscurity it would be greatly illuminated by a consideration of the negotiations which preceded the adoption of the Treaty." 8 Am. J. Int. L. 913.

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ASHERBERG HOPWOOD AND CREW, LTD. V. QUARITCH

Asherberg Hopwood and Crew Ltd. v. Quaritchdecided in 1925 by the Anglo-German Mixed Arbitral Tribunal created under the Treaty of Versailles, is an example where a real conflict between the " clear meaning " of the text on the one hand and extrinsic evidence on the other existed. The Tribunal in this case was burdened with the task of interpreting the word " cancelled" as used in Article 310 of the Treaty of Versailles in reference to licenses respecting " industrial, literary or artistic property concluded before the W a r between nationals of the Allied and Associated Powers or persons residing in their territory or carrying on business therein, on the one part, and German nationals, on the other part." These licenses according to Article 310, " s h a l l be considered as cancelled as from the date of the declaration of war between Germany and the Allied or Associated P o w e r . " Germany contended that the word " cancelled " in Article 310 was designed to mean the same thing as the word " dissolved " employed in Article 299 of the Peace Treaty in reference to pre-war contracts in general. It contended further that all the legal consequences involved in " dissolution " of contracts provided for in Articles 299 to 305 were applicable to licenses. T o support this contention, Germany cited its observations on the conditions of peace (preceding the signing of the Treaty of Versailles) dealing with Article 310, which commenced in the following fashion: " . . . regulation of contracts for licenses concluded before the war (Article 310), which provides for retrospectivity for the cancellation of such contracts from the beginning of the war, in accordance with the principle set forth in general terms in Article 299 and already discussed. If the principle is accepted 53

5 T . A . M. 332.

«Ibid., p. 335.

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in the latter Article [Article 299], the implied conclusion must be drawn in the present connection. . . . T o these observations the Allied and Associated Powers replied as follows: 5 5 Since contracts for licenses in respect of rights in industrial, literary and artistic property should receive the same treatment as other pre-war contracts, the same procedure should be applied to them as is applied to contracts generally as provided in Articles 299 to 305. The German agent said that, therefore, the understanding of the High Contracting Parties was only to " dissolve " these contracts for licenses and that all legal consequences following the " dissolution " should be applied to them. The Tribunal declared: 5 8 The Tribunal have on more than one occasion referred to the reply of the Allied and Associated Powers. This they have done where the Treaty itself has given no clear indication, and where the Tribunal have not been satisfied as to the intention of the High Contracting Parties. In their opinion, the provision under discussion is so clear that they are unable to base their interpretation upon any other document. It may be that in the correspondence between the High Contracting Parties as to this Article, some mistake has crept in, but here the Treaty has a clear meaning, and that meaning must prevail. The use of the expression " cancelled " would, even standing alone, appear to put an end to all further rights to payment derivable from the license for the use after the outbreak of the war, but the latter part of Article 310 confirms, if confirmation is necessary, this view. . . . Part V I I of the Treaty relating to industrial property is a 55

Ibid., pp. 335-336.

58

Ibid., p. 336.

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lex specialis within the Treaty. The words putting an end to the license contract—" shall be considered as cancelled "—in [Article] 310, and the words—"shall be regarded as having been dissolved "—are different and have a different meaning. . . . Moreover Article 299 contains words limiting dissolution and the rest of the section contains numerous exceptions, whereas [Article] 310 is absolute and contains neither limitation nor exception. . . . This is an example of a sharp conflict between the " clear meaning " and extrinsic evidence leading to divergent conclusions. The German observations and the Allied reply were all the evidence introduced by Germany. They were general, and perhaps meagre, statements; yet they showed definitely that the Parties had designed to make no distinction between " dissolution " and " cancellation " of contracts. The text, on the other hand, read in the natural meaning of its terms, seemed to provide for different procedures for dissolving and cancelling a pre-war contract. Unable to harmonize the text with the evidence, the Tribunal resorted, perhaps, to an arbitrary method of interpretation by declaring that the provision was " so clear that they are unable to base their interpretation upon any other document ". One might with equal justification conclude that the Parties, while using the word " cancelled ", had mutually understood and agreed to mean the same as " dissolved." Thus, by suspecting that some mistake might have crept into the correspondence, the Tribunal seemed to have rejected the mutual agreement of the Contracting Parties. The method of approach used in the Aroa Mines Case or in the David J. Adams Case seems to be a sounder and safer one in ascertaining the sense in which words were actually employed by the contracting parties. The case of Asherberg Hopwood and crew Ltd. v. Quaritch, moreover, stands almost by itself.

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T H E C A Y U G A I N D I A N S C L A I M S CASE

The Cayuga Indians Claims Case," decided by the American and British Claims Arbitration Tribunal, created under the special agreement of Washington, August 18, 1910,58 is another example in which external evidence contradicting the " apparent meaning " of the terms of an article was rejected by a tribunal. The Tribunal in this case was interpreting Article I X of the Treaty of Ghent, which read partly as follows: 5 9 The United States of America engage . . . forthwith to restore to such tribes or nations [of Indians,] respectively, all the possessions, rights and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities. The Tribunal said that the word " enjoyed " referred to the substantial participation in the division of the money, paid by the State of New York to the Cayuga Indians as a nation, before the war of 1812; that the provision " on its face " seemed to apply " squarely " to the Cayugas who took the British side during the war and went to Canada after the war, and who had been actually in the receipt and enjoyment of their share of the annuity up to the eve of the war; and that this provision, therefore, " must be construed as a promise to restore the Cayugas in Canada who claimed to be a tribe or nation and had been in the war as such to the position in which they were prior to the division of the nation at the outbreak of the war." 60 It was a promise, concluded 57 American G a i m No. 6. M

and British

Claims

Awards

1S4,

op.

cit.,

See supra, p. 40.

Quoted American and British op. cit., Claim No. 6, pp. 18-19. 59

60

Arbitration,

Ibid., p. 19.

Claims

Arbitration,

Awards

1S4,

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MEANING

"

53

the Tribunal, to restore the situation in which they had received their share of money covenanted to be paid to the organized undivided nation of the Cayugas.® 1 The Tribunal reached this conclusion, partly because there seemed to it no other alternative in the construction of the Article. The United States sought to prove by the aid of the history of the negotiations leading to the Treaty of Ghent that the Article was designed merely as a " nominal " provision." T o this the Tribunal answered: 8 3 In the answer of the United States there is an elaborate and ingenious argument, based upon the history of the negotiations leading to Article I X , on the basis of which we are asked to hold that the Article was only a " nominal" provision, not intended to have any definite application. Nothing is better settled, as a canon of interpretation in all systems of law, than that a clause must be so interpreted as to give it a meaning rather than so as to deprive it of meaning. We are not asked to choose between possible meanings. We are asked to reject the apparent meaning and to hold that the provision has no meaning. This we cannot do.44 On the face of it, the rejection of the American contention by this Tribunal seemed not based on the probative value of the evidence submitted, but on the consideration of the exist81

Ibid.

82

Ibid.

83

Cf. Arbitration Int. L. 995.

between Switzerland

and France,

1912, 6 Am. J .

84 Cf. extracts from the arguments of the American agent, Nielsen, Report of American and British Claims Arbitration (Washington, D. C., 1926), pp. 205, 211-215. The American agent contended that the framers of the Treaty did not have in mind these Indian claims, but that " if in some way it can be construed that Article I X of the Treaty of Ghent does relate to rights of that kind, then we point out to the Tribunal that the United States has fulfilled the properly construed obligations of the Treaty of Ghent," ibid., pp. 214-215.

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ence of a rule of interpretation, perhaps in private law systems, and of the applicability, in the opinion of the Tribunal, of this " canon " to the interpretation of treaties. However, it might have been due to the fact that the evidence submitted to sustain the American contention was regarded as unconvincing." T H E NORTH ATLANTIC

COAST F I S H E R I E S

ARBITRATION

The case of the North Atlantic Fisheries Arbitration, decided by the Permanent Court of Arbitration of the Hague," is instructive in many respects. Here, however, we are particularly interested in the issue raised in the Cayuga Indians Claims Case and the methods of interpretation adopted by this Tribunal in solving the same problem, namely, whether it is allowable to introduce external evidence to prove that a provision is merely " nominal", contrary to the obvious meaning of the language of the text. Article I of the Convention, signed at London, October 20, 1818,6T provided: The United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's dominions in America etc. The United States contended that the words " coasts, bays, creeks or harbors " as used in the Article meant only the different parts of the coast and were " intended to express and be equivalent to the word ' coast' ", and that, therefore, ®5 See the arguments of the American agent, loc. cit. M Proceedings in the North Atlantic Coast Fisheries Arbitration, S. Doc., No. 870, vol. i, 61st Cong., 3rd Sess. (Washington, D. C., 1912). 67

Supra, p. 41.

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FOR

" CLEAR

MEANING

"

55

the three-mile rule should be employed to measure the whole coast regardless of its sinuosities.*8 The Tribunal said: " Words in a document ought not to be considered as being without any meaning, if there is not specific evidence to that purpose. The Tribunal pointed out that the American contention would leave the words " bays, creeks or harbors " practically out of the Treaty and would read the phrase as if it were " within three miles of any of the coasts " ; that this construction was not supported by specific evidence; that the same words " bays " and " harbors " used in other clauses of the Article could not be explained if the American construction were to be followed; and that the practical distinction between coasts and bays for the purpose of this fishery had been shown from diplomatic correspondence to have been in all probability present in the minds of the negotiators.' 0 From all these circumstances the Tribunal declared that the American construction could not be accepted. The method of interpretation used by this Tribunal seems to be a much sounder and simpler one than that applied in the Cayuga Indians Claims Case. The words of an article, as intimated by this Tribunal, may be declared meaningless if it can be shown by evidence that such was the design of the contracting parties; while if the decision of the Cayuga Indians Case is followed, the door to investigating such a design of the contracting parties would seem closed. The Tribunal rendered another important service in stating precisely the reasons for following the " clear meaning " of a text in treaty interpretation. In deciding the meaning of the word " bay ", it said: " 88 Proceedings in op. cit., vol. i, p. 96. 89

Ibid.

the North to

Atlantic

Coast

Fisheries

n jbij

t p.

97,

Arbitration,

56

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The negotiators of the Treaty of 1818 did probably not trouble themselves with subtle theories concerning the notion of " bays " ; they most probably thought that everybody would know what was a bay. In this popular sense the term must be interpreted in the Treaty. . . . Here are the reasons for following the " popular sense " or " clear meaning " in treaty interpretation put in a nutshell. In other words, if there is no evidence to the contrary, it is natural to assume that the parties have followed the " popular sense " in using words in a treaty. But if there is specific evidence to the contrary, the reason for following this " clear meaning " in treaty interpretation seems no longer to exist. The respect for the " clear meaning " of a text is thus limited to cases where there is no specific evidence to the contrary. HAUENSTEIN V. L Y N H A M

In the case of Hauenstein v. Lynhatndecided by the Supreme Court of the United States in 1879, the Court was called upon to interpret Article V of the Treaty between the United States and the Swiss Confederation of 1850, which provided: TS In case real estate situated within the territories of one of the Contracting Parties should fall to a citizen of the other Party, who, on account of his being an alien, could not be permitted to hold such property in the state or in the canton in which it may be situated, there should be accorded to the said heir, or other successor, such term as the laws of the state or canton will permit to sell such property; he shall be at liberty at all times to withdraw and export the proceeds thereof without any difficulty etc. " 100 U. S. 483-

» Quoted ibid., p. 486.

RESPECT

FOR " CLEAR MEANING "

57

The issue was whether the words " such term as the laws of the state will permit" should be construed to mean that the Treaty contemplated leaving to the State to provide for a time limit within which the right of the alien to sell such property was to be exercised, and that, if the laws of the State did not provide for any such time limit, the right was not to be exercised at all. The Court declared that it was " clearly the intention of the clause in question " in the Treaty of 1850 to secure the beneficiaries absolutely the right to sell such property, and to withdraw and export the proceeds thereof without difficulty; and that " otherwise the language used " would be " a sham and mockery." " The Court agreed to the argument that the words " as the laws of the state will permit " constituted a limitation in respect of the time allowed for selling such property (when the alien was " t o be at liberty at all times to withdraw and export the proceeds thereof " ) , but it maintained that 7 * the terms of the limitaton imply clearly that some time, and not that none, was to be allowed. In the Court's opinion, if it had been " proposed to those who negotiated the Treaty to express in it the effect of this construction [that the right to sell such property was not to be exercised at all where the state laws did not provide for a time limit for it] in plain language, can it be doubted that it would have been promptly rejected as contrary to the intent of the Parties?" 7 4 Thus the Court, by referring to the " clear " implications of " the terms ", merely meant the design of the Contracting Parties as deduced from the terms of the text. Far from "Ibid., p. 487" Ibid. M

Ibid.

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relying upon the text alone, the Court adverted also to extrinsic evidence. It observed that in an earlier treaty between the same Parties a definite period of time was provided for in the treaty itself for selling such property and that in the present Treaty it was deemed more convenient to leave to the laws of respective States or Cantons to fix the time limit. This construction was deemed to be consonant to the Judiciary Act of 1789, which gave to state statutes of limitation the same effect in the local courts of the United States which they had in the courts of the States respectively that enacted them.77 From all these considerations the Court decided that the Treaty contemplated a time limit to be provided for by State laws for selling such property of aliens.78 We have studied numerous important cases, handed down by international and national tribunals, dealing with respect for " clear meaning " of the text of an article in treaty interpretation. Tribunals agree that in resorting to the " clear meaning " they are trying to ascertain the design of the contracting parties. Whether the text itself in its final form should be considered as being more carefully drafted and, therefore, should be given more weight, especially when it seems " clear ", as evidence probative of the design of the contracting parties than other extraneous circumstances is a question, as yet seldom faced by tribunals. The Aroa Mines Case has illustrated that beyond the " clearness " o f the " clear " text there might exist latent ambiguity. The 77

Ibid., pp. 487-488. See also infra, pp. 161-163 where the case is discussed in connection with the " rule of liberal construction." For other decisions, see Ware v. Hylton, 3 Dallas, 199, 253; Shanks v. Dupont, 3 Pet. 242; Society v. New Haven, 8 Wheat. 464; Alvarez Y. Sanchez v. U. S., 216 U. S. 167; Petersen v. Iowa, 245 U. S. 170; Duus v. Brown, 245 U. S. 176. See also Little v. Watson, 32 Maine 214; Marryatt v. Wilson, 1 B. & P. 430; The Belgia, 2 A. C., 1916, p. 183; and The Concadoro, 5 Lloyd 92. 78

RESPECT FOR " CLEAR MEANING "

59

North Atlantic Coast Fisheries Arbitration Case has suggested that the Contracting Parties " most probably " have followed the popular sense of the terms if there is no evidence to the contrary. In the David J. Adams Case, the Tribunal stressed in its decision the absence of any evidence to contradict the " clear meaning." In the decisions and opinions rendered by the Permanent Court of International Justice there has been no real conflict between the " clear meaning " and extrinsic evidence, although a dictum sometimes might give a different impression. In Hauenstein v. Lynham the Supreme Court of the United States did not even attempt to evaluate the relative probative force of the " clear meaning " of the text and other considerations. In the Cayuga Indians Claims Case and in Asherberg Hopwood and Crew, Ltd. v. Quaritch, external evidence contrary to " clear meaning " was rejected in fact by tribunals. In the former case, however, an examination of the arguments of the United States might lead to the suggestion that the fact that the evidence submitted by the United States was unconvincing might have encouraged the Tribunal to take the stand it did. In the latter case, a clash between a " clear meaning " and extrinsic evidence was deemed to exist. The Tribunal, however, did not seem to treat the subject thoroughly, merely asserting that the design of the Contracting Parties as collected from the " clear" language " must prevail ", and suspecting that " some mistake " might have crept into the correspondence. Taking judicial experiences as a whole, it seems, therefore, that this important question concerning a conflict between " clear meaning " and extrinsic evidence has not yet been fully dealt with. On the other hand, where the " clear meaning " as collected from the text itself is fortified by other considerations internal or external to the treaty in question and is not con-

60

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tradicted by evidence, tribunals usually do not hesitate to accept the " clear meaning " as indicative of such a design of the contracting parties. Tribunals, moreover, do not resort to the argument in favor of restrictive interpretation of a text involving limitations on the exercise of sovereign rights when the design of the contracting parties can be collected from the clear language of the article which is not contradicted by evidence.

CHAPTER

III

CONSTRUCTIONS W H E N T H E T E X T A P P E A R S D O U B T F U L

IN the last chapter we have confined ourselves to the study of cases in which a perusal of the text of the article in question, according to the natural meaning of the language employed therein, would seem sufficient to suggest the clear design of the contracting parties. There remain many cases, however, where the language of the article appears susceptible of more than one interpretation and where the precise sense in which words were employed by the parties cannot be deduced from a mere analysis of the text. In this chapter we shall examine the methods of interpretation adopted by tribunals in such cases. A n d , if the argument for imposing the minimum burden upon states is advanced again, we shall try to see whether tribunals are more inclined to accept such an argument in doubtful cases than in cases wherein the meaning o f the text has been declared " clear." The question, now, is whether tribunals would readily yield in such cases to the consideration of the nature or scope of the sacrifice involved and therefore give a restrictive interpretation to the doubtful text, or rather unimpressed by such sacrifice, resort to other methods of interpretation with a view to finding out solely the sense actually agreed upon by the parties. The answer to this question is to be sought from judicial practices. TERRITORIAL JURISDICTION

OF T H E I N T E R N A T I O N A L

COM-

MISSION OF T H E RIVER ODER

Article 331 of the Treaty of Versailles declared four rivers, flowing wholly or in part through territory affected 61

62

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by the war, to be international; these are the Elbe, the Oder, the Niemen, and the Ulm. They are each declared international from a particular point, and also " all navigable parts of these river systems which naturally provide more than one state with access to the sea." 1 The Oder was placed according to Article 341 of the same Treaty, under the administration of an international commission comprising representatives of Poland, Germany, the Czecho-slovak State, Great Britain, France, Denmark, and Sweden. A difference of opinion arose at once whether the commission had jurisdiction over the upper parts of the two navigable branches of the Oder—the Warthe and the Netze—which are in Polish territory, or whether its jurisdiction stopped at the Polish frontier. The case was brought to the Permanent Court of International Justice for a decision.* The Polish Government contended that that part of the Warthe and Netze respectively, which was in Polish territory, provided only Poland with access to the sea, and that, therefore, it did not fall within the definition of Article 3 3 1 . On the other hand, the six other Governments contended that the condition prescribed by Article 3 3 1 was fulfilled; " for the fact of providing more than one state with access to the sea concerns the waterway as such and not a particular part of its course." 8 Besides, they argued, the word " part " in Article 331 referred to the river system and " a part of a river system, in the natural meaning of the terms, is one of the units comprising the said system, namely, a tributary or sub-tributary ", and moreover in Article 3 3 1 , when a part of waterway was referred to, the word " section " was used to distinguish it from a part of a river system.4 The Court, 1

Quoted Pub. P. C. I. J. ( A / B ) , No. 36, p. 24.

2 Pub. P. C. I. J. ( A / B ) , No. 36. 3

Ibid., p. 25.

* Ibid., p. 26.

WHEN

THE

TEXT

APPEARS

DOUBTFUL

63

however, did not regard this argument alone as " sufficient to show that the intention of the Contracting Parties was to internationalize tributaries and sub-tributaries as such." 8 It continued: 4 Nor can the Court, on the other hand, accept the Polish Government's contention that, the text being doubtful, the solution should be adopted which imposes the least restriction on the freedom of states. This argument, though sound in itself, must be employed with the greatest caution. T o rely upon it, it is not sufficient that the purely grammatical analysis of a text should not lead to definite results; there are many methods of interpretation, in particular, reference is properly had to the principles underlying the matter to which the text refers; it will be only when, in spite of all pertinent considerations, the intention of the parties still remains doubtful, that the interpretation should be adopted which is most favorable to the freedom of states. T h e Court, therefore, felt obliged to go back to the principles governing conventional international fluvial law in general and to the position adopted by the Treaty of Versailles in regard to them. These seemed to indicate that the solution of the problem should be sought " not in the idea of a right of passage in favor of upstream states, but in that of a community of interests of riparian states " ; and such an interest to maintain a navigable river for a community of states had, it was said, become " the basis of a common legal right, the essential features of which are the perfect •Ibid. • Ibid. Cf. Ralston's statement in the Sambiaggio Case, " If it had been the contract between Italy and Venezuela, understood and consented to by both, that the latter should be held for the acts of revolutionists— something in derogation of the general principles of international l a w — this agreement would naturally have found direct expression in the Protocol itself and would not have been left to doubtful interpretation." Ralston, Venezuelan Arbitrations of 1903, op. cit., p. 689.

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equality of all riparian states in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian state in relation to the others." This community of interest was based on the existence of a navigable waterway traversing or separating two or more states; consequently, it extended to the whole river and did not stop at the last frontier. This conception, it was said, had been adopted by the Act of the Congress of Vienna and developed by subsequent treaties.7 From the various relevant articles of the Treaty of Versailles, the Court found that the Treaty reproduced almost textually all the essential provisions of the A c t of the Congress of Vienna, and that other provisions of the Treaty would become inappropriate or meaningless if the internationalization of the river were to stop at the last political frontier. It is because of this internal evidence that the relevant articles of the Treaty appeared to respect and to be in harmony with " the principles governing international fluvial law that the Court concluded that the position of complete internationalization was adopted by the authors of the Treaty of Versailles. 8 The Court showed, in this case, its reluctance to resort to the argument in favor of imposing the minimum burden upon states, although the meaning of the text appeared doubtful. It said that it would not do so unless all possible methods of interpretation failed to indicate the design of the Contracting » Pub. P. C. I. J. ( A / B ) , No. 36, p. 29. The Court also said: " From all that precedes, the conclusion may be drawn that the Treaty of Versailles adopts the same standpoint as the Act of Vienna and the treaty law which applied and developed the principles of that A c t . That is, moreover, what the Allied and Associated Powers expressly declared in their reply to Germany on June 16th, 1919: ' the provisions regarding internal navigation routes apply only to river systems which are all international as defined by the Congress of Vienna'." Ibid. 8

WHEN

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65

Parties. B y comparing the provisions of the relevant articles of the Treaty with previous international conventions showing the historical development of the principles governing conventional international fluvial law, the Court was able to deduce the proper signification to be given to the Article, and with this conclusion already arrived at the Court showed its readiness to reject the Polish construction which would impose the least restriction on the freedom of states. Similarly in the case of the European Commission of the Danube,® the Court referred to the historical development of the internationalization of that river as an aid in reaching its conclusions. Besides the cases of the Permanent Court of International Justice there are other cases wherein similar methods seemed to be used in dealing with problems arising out of a doubtful text. The following are some of the important decisions handed down by other tribunals. T H E V E N E Z U E L A N BOND CASES

In deciding the Venezuelan Bond Cases,10 Mr. John Little, chairman of the Commission created under the Convention of March 15, 1888, between the United States and Venezuela,11 explained for the Commission at great length the reasons for deciding that, the word " claims " as used in the Convention embraced overdue Venezuelan bonds. The Convention gave the Commission jurisdiction over cases relating to " all claims on the part of corporations, companies, or individuals, citizens of the United States, upon the Government of Venezuela, which may have been presented to their Government or its legation at Caracas ", before a specified • P u b . P . C. I. J. ( A / B ) , No. 25; see also infra, pp. 102-106. 10

4 Moore, Arbitrations,

3616.

2 Malloy 1865; see also the Convention of 1885, ibid., p. i860, and the second Convention of 1888, ibid., p. 1886. 11

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date. T h e question was whether the " c l a i m s " included obligations arising from such bonds. Mr. Little first reviewed a similar case, the Colombian Bond Cases,12 decided by an earlier commission. In that case, Sir Frederick Bruce, Umpire, declared that " in all cases in which reasonable doubt exists, the Commission is bound to construe its powers in a limited and not in an extensive sense " and that, as it was deemed doubtful whether the term " claims " used in the convention creating the commission embraced bond cases, it should be assumed that the parties reserved the bond cases to themselves. 18 Mr. Little then explained in detail the reasons for his departure from this precedent. He started with the ordinary sense and also the legal adaptation of the term " claims but he did not stop there. H e went on to say that " the comprehensive term ' claims ' is the one always employed in similar treaties, and is always accompanied with words of restriction." 19 H e compared the wording of various conventions 18 to which the United States or Venezuela w a s a party, and found that the term " claims " was sometimes accompanied with qualifications as to ownership, time, origin, or character. 17 In the Convention in question the term " claims " was limited to those owned by the citizens of the United States and presented by its Government before a specified date; " the ele12

4 Moore, Arbitrations,

3614.

«Ibid. 14

Ibid., pp. 3622-3626.

15

Ibid., p. 3626.

1 8 Such as the treaties between the United States and Spain of 1795, 1802, and 1834, the Treaty between the United States and the T w o Sicilies of 1832, the Convention between the United States and Ecuador of 1864, the Treaty between France and Venezuela of the same year, and also the Treaty of Washington, 1871, relating to the " Alabama Claims." 17

4 Moore, Arbitrations, 3627.

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ment of character is wholly lacking." He queried : " Would it not constitute a material change to insert a qualifying phrase fixing the character of the claims contemplated? . . . Considering that it is common in such treaties as this among nations to qualify the word " claims " by indicating the character of the demands to be adjudicated or adjusted by descriptive or apt words, does there not arise a clear implication that where such qualification is omitted none was intended? " 1 8 He adverted also to the practical constructions by international commissions of the term " claims " as used in treaties,1* and to the fact that these bond claims were " thoroughly known to each government when the present Convention was framed as a pending case." 20 He concluded that " from any and all points of view, therefore, the High Contracting Parties did in fact submit this claim to the Commission." 21 The decision is significant, because the Commission refused to follow the " reasonable doubt rule " of Sir Frederick Bruce, Umpire in the Colombian Bond Cases, and resorted instead to a variety of sources of evidence, and found that the Parties " did in fact submit this claim to the Commission." The Commission's attitude towards the argument for restrictive interpretation in case of a doubtful text seems also akin to that of the Permanent Court of International Justice as pronounced in the Oder Case. D E C I S I O N R E G A R D I N G I N T E R E S T ON A W A R D S

In the British-Venezuelan arbitration of 1903 a question arose as to whether interest was included in the " amount " 18

Ibid., pp. 3627-3628.

18

Ibid., pp. 3628-3634.

î0

Ibid., p. 3634.

«

Ibid.

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to be decided by the Commission. The Protocol creating the Commission provided that the Commission " shall examine the claims and decide upon the amount to be awarded in satisfaction of each claim." 22 The British Commissioner relied upon the phrase " in satisfaction of each claim" which appeared to him to embrace interest because it was deemed to be a universally recognized principle of law that, when the date of payment was uncertain, interest should accrue. He contended further that interest in this case should be calculated from the date of the claim to the final payment of the award. 28 The Venezuelan Commissioner, on the other hand, maintained that the clear and precise terms of the Protocol barred all discussions on the question of interest.21 Umpire Plumley said that the term " amount" used in the provision seemed to mean and only mean a certain round sum to be awarded in satisfaction of the claim, which in itself might include the original sum and interest thereon to the time of the award; that the other parts of the Protocol showed a purpose and plan on the part of the two Governments to settle all details for themselves, excepting the claims submitted in Article III, and by and for themselves to settle the means of payment thereof and the security therefor; that the only question left open for the determination of the Commission was the claims themselves, namely, whether in justice and equity there was anything due and, if so, how much; and that, were he obliged to determine the question unaided by reference to collateral facts or by the use of other proper means, he would be obliged to hold such to be the rule.25 This, however, was not deemed conclusive. The next question, according to the Umpire, was whether "exami22 23

Ralston, Venezuelan Ibid.

«Ibid. 25

Ibid., p. 414.

Arbitrations

of 1903, op. cit., p. 413.

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nation of the facts leading up to the Protocol and collateral with it would remove or firmly establish this belief." From a careful reading of the entire correspondence, he found no suggestion that the Parties had interest in their mind during the negotiations. He then reviewed the provisions of various kindred agreements between nations including the United States-Venezuelan treaties of 1867, 1886, and 1892, the United StatesMexican treaties of 1839 and 1869, the American and British Claims Commission Treaty of 1 8 7 1 , and treaties affecting China and Peru, and concluded:" The general practice of nations in cases of submission to arbitration has not been to provide for interest on the awards until the date of payment; that so to provide is quite the exception. There is to be considered also the general rule that nations do not pay interest except when especially written in the contract. The Umpire said that the force of this general rule was to negative any implied contract between nations to pay interest, and that the British contention in this case was not supported by the clear language of the Protocol. He believed it to be safe to hold that the Commission had no power not directly conferred upon it by the Protocol. Various sources of internal and external evidence were used in this case by the Umpire to ascertain the fact that the Parties did not empower the Commission to decide on matter of interest until the date of payment of the award when they adopted the term " amount" in Article I I I of the Protocol. That the general practice of nations in cases 26

Ibid., p. 421. See also Schumacher v. Germany, decided on October 1, 1922, by the German-Yugoslav Mixed Arbitral Tribunal, where subsequent treaties, such as the Treaties of St. Germain and Trianon, were referred to in interpreting the term " New States" used in the Treaty of Versailles.

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of submission to arbitration had not been to provide for interest on awards prior to the date of payment, and that there was no suggestion, from the correspondence leading up to the Protocol, that the Parties contemplated interest when they adopted the Article, led definitely to the conclusion that there was no implied contract for interest when it was not specifically provided in the Protocol. ROCCA V. THOMPSON

In the case of Rocca v. Thompson,27 decided by the Supreme Court of the United States in 1913, Article I X of the T r e a t y between the United States and the Argentine Republic, signed on July 27, 1853, was under interpretation. T h e Article provided : 2 8 If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the Consul-General or Consul of the nation to which the deceased belonged, or the representative of such Consul-General or Consul, in his absence, shall have the right to intervene in the possession, administration, and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs. T h e Article was invoked in this case by the Italian Consul through a most-favored-nation clause in the Treaty of 1878 between the United States and Italy. T h e Supreme Court said that the sole right conferred was that of intervention and that conformably with the laws of the country. Whether the right to " intervene " embraced the right to administer the estate of such a decedent, and served to subordinate thereto privilege locally conferred upon a public administrator, was a question which had been productive of « 223 U. S. 317. « Cited ibid., p. 326.

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divergent opinions on the part of American tribunals." The Supreme Court of the United States observed that in the United States the right to administer property left by a foreigner within the jurisdiction of a State was primarily committed to State law and that there was no federal law of probate or of the administration of estates; that this was one of the reasons cited by the State Department,*0 in 1894, in rejecting the Italian proposal to give the administration of such estates to consuls to the exclusion of local authorities; that it was a universally recognized right of a consul to temporarily possess the estate of a citizen of his nation for the purpose of protecting and conserving the rights of those interested before it came under jurisdiction of the laws of the country for its administration; that, looking at the terms of the Treaty with the Argentine Republic, the Court could not perceive any design on the part of the Contracting Parties to give the administration of such estates to consuls to the exclusion of one authorized by local law to administer such estates; and that, i f the Parties contemplated committing the administration of such estates exclusively to consuls, it would have been very easy to have declared that purpose in unmistakable terms. 31 In view of these circumstances, the Court concluded that the Treaty did not give the right to administer such estates exclusively to consuls, and that consuls, under the Treaty, only had the right to intervene in such cases in conformity with local law. 2

» Sec in re Fattosini's Estate, 67 N. Y. Supp. 1119; in re Labrasciano's Estate, 77 N. Y. Supp. 1040; Wymon, Petitioner, 191 Mass. 276; Carpigiani v. Hall, 55 So. Rep. 248; in re Scutella's Estate, 129 N. Y. Supp. 20; also in re Logiorato's Estate, 69 N. Y. Supp. 507; Lanfear v. Ritchie, 9 La. Ann. 96. 30 See 223 U. S. 317, 33331

The Treaty between the United States and Peru of 1887 was cited as an example.

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CHARLTON V. K E L L Y

In the case of Charlton v. Kelly," the Supreme Court of the United States was confronted with the question of interpreting the word " persons " as used in Article I of the Extradition Treaty with Italy of 1884, which provided that the two Governments mutually agreed to deliver up all " persons " convicted of or charged with certain crimes. The precise issue was whether " persons " included citizens of the country of asylum. The Court said that the word " persons " etymologically included citizens as well as those who were not, and that the Treaty contained no reservation to exempt citizens of the country of asylum from extradiction. The Court traced the beginning of the exemption of citizens from extradition from the practice between France and the Low Countries in the 18th century." It observed that, owing to the existence in the municipal law of many countries of provisions prohibiting the extradition of citizens, the United States had in several of its extradition treaties, clauses exempting citizens from their obligation; that the treaties in force, therefore, might be divided into two classes, those which expressly exempted citizens, and those which did not; that although those which contained the limitation were by far the larger number, the Court was unable to conclude that there was any principle of international law, by which citizens were excepted out of an agreement to surrender " persons " where no such exception was made in the treaty itself; and that on the contrary the word " persons ", when not qualified, should include all persons. In the Court's opinion, the fact that the United States made an exception in some of the treaties and not in others demonstrated that the Con" 229 U. S. 447.

«Ibid., p. 467.

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tracting Parties were fully aware of the consequences when there was no clause qualifying the word " persons." 34 The Court said further that this interpretation had been consistently upheld by the Political Department of the Government of the United States and enforced under several treaties which did not exempt citizens, and that a construction of a treaty by the Political Department of the Government, while not conclusive upon a court called upon to construe such a treaty, in a matter involving personal rights» was nevertheless of much weight.85 In view of the circumstances stated above, the Court concluded that the word " persons " as used in Article I of the Treaty included citizens of the country of asylum as welt as those who were not. In a few other cases decided by the Supreme Court of the United States, similar methods of approach were used in interpreting treaties, a perusal of which was not sufficient t o show the clear design of the contracting parties. Thus, for instance, in the case of Chew Heong v. United States'* treaties of 1858 and 1868 between the United States and China were traced and compared with the Treaty of 1880 in order to show the historical development of mutual emigration between the two countries. The position adopted by the Treaty of 1880 in regard to this matter was clarified by comparing its provisions with those of the earlier treaties. In the Wildenhus Case," the historical development of the practice allowing consuls to adjudicate in disputes arising between captains and crews of vessels of their own nations provided no " disorder " was created affecting the peace and tranquility of the port, was traced through numerous treaty 34

Ibid., p. 468.

See also U. S. v. Rauscher, 119 U. S. 407.

« 229 U. S. 447, 468. 86

112 U. S. 536.

" 120 U. S. 1.

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agreements preceding the Convention with Belgium, which was invoked in the case, and this enabled the Court to define precisely the right given to the Consul by the Convention under interpretation. The foregoing cases illustrate clearly that, when a perusal of the text of an article fails in itself to indicate conclusively the design of the contracting parties, tribunals generally resort to other methods of interpretation by adverting to various sources of extrinsic evidence. Due consideration is usually given to other treaty arrangements dealing with the same or kindred subject and to other circumstances with a view to finding out general principles governing the subjectmatter in question, or practices traditionally followed by the parties in regard to that subject. When interpreted in the light of these circumstances, the sense attached by the parties to the terms of a treaty, which otherwise seems obscure and ambiguous, can be ascertained. Thus in the Oder Case, in the Venezuelan Bond Case, and in the " Decision regarding Interest on Awards " rendered by the British-Venezuelan Mixed Claims Commission, the disputed terms were interpreted in conformity with principles and practices followed by nations in kindred arrangements, with which the terms of the treaties under interpretation appeared to be in harmony and which no evidence appeared to contradict. In Rocca v. Thompson and in Charlton v. Kelly, the practices followed and views held by the Political Department of the Government of the United States were also used to shed light on the terms under interpretation. As regards the argument that, the text being doubtful, the construction should be adopted which imposes the minimum burden upon either of the contracting parties, the cases analyzed in this chapter show that tribunals are frequently reluctant to resort to such an argument while the actual design of the contracting parties can be ascertained from

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various sources of evidence." The Permanent Court of International Justice in the Oder Case announced its reluctance to follow such a theory when there were still other methods of interpretation available. In the Venezuelan Bond Cases, the Commission refused to follow a precedent which favored a restrictive interpretation of doubtful texts, because the Commission was able, from a variety of sources of evidence, to deduce the actual agreement of the Parties. 38 Cf. the North Atlantic Coast Fisheries Arbitration Case where the Permanent Court of Arbitration of the Hague said : " The right to regulate the liberties conferred by the Treaty of 1818 is an attribute of sovereignty, and as such must be held to reside in the territorial sovereign, unless the contrary be provided." However, that Court did not refuse to consider external evidence contrary to this presumption. T h e Court considered all the evidence submitted by the United States and found nothing sufficient to establish a different design of the Contracting Parties. Proceedings in the North Atlantic Coast Fisheries Arbitration, op. cit., vol. i, p. 74 et seq. Cf. also the Maninot Arbitration Case, Ralston, Report of FrenchVenezuelan Mixed Claims Commission of 1902, op. cit., p. 44. See also Loy and Markus v. German Empire, decided by the GermanCzechoslovak Mixed Arbitral Tribunal, 3 T . A . M . 998, wherein the Tribunal declared : " Lorsqu'il s'agit, en présence d'un texte imprécis, de déterminer la volonté des parties contractantes, l'interprétation prudente doit être la règle, l'interprétation extensive ou restrictive, l'exception." Ibid., p. 1004.

CHAPTER

IV

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PUR-

POSES OF T H E CONTRACTING P A R T I E S

IN cases where the existence of a broad design on the part of the contracting parties to achieve a particular end by means of certain treaty stipulations can be readily deduced from the preamble or from viewing various aspects of the treaty as a whole, the question of interpretation seems to be to see in each particular case how far the manifest purpose of the treaty is to be respected in interpreting its terms. Should constructions be suggested by litigating parties tending to restrict it, to render short of complete fulfilment, or even to essentially frustrate, this manifest purpose, would tribunals accept or reject such constructions in their interpretation of treaties? This will be the topic of investigation in the following pages. C O M P E T E N C E OF T H E I N T E R N A T I O N A L LABOR ORGANIZATION TO R E G U L A T E I N C I D E N T A L L Y T H E PERSONAL WORK OF T H E E M P L O Y E R

In the thirteenth advisory opinion 1 the Permanent Court of International Justice was called upon to decide whether it was " within the competence of the International Labor Organization to draw up and to propose labour legislation which, in order to protect certain classes of workers, also regulates incidentally the same work when performed by the iPub. P. C. I. J. (A/B), No. 19. 76

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employer himself." 2 T h e Court reviewed the provisions of Part X I I I of the Treaty of Versailles (dealing with L a b o r ) , and found that its Preamble declared that the object of the organization w a s to achieve universal peace, which was deemed obtainable only on the basis of social justice, and that the organization was to deal with a variety of subjects, the enumeration of which in the Articles of Part X I I I 1 was not claimed to be " either complete or final." 4 T h e Court then declared: 8 It results from the consideration of the provisions of the Treaty that the High Contracting Parties clearly intended to give to the International Labor Organization a very broad power to co-operate with them in respect of measures to be taken in order to assure humane conditions of labor and the protection of workers. It is not conceivable that they intended to prevent the organization from drawing up and proposing measures essential to the accomplishment of that end. If such a limitation of the powers of International Labor Organization, clearly inconsistent with the aim and the scope of Part X I I I , had been intended, it would have been expressed in the Treaty itself. The Court found that not only did the entire framework o f Part X I I I j u s t i f y the inference that the International Labor Organization was not excluded from proposing measures for the protection of wage-earners because they might incidentally regulate the personal work of the employers, but also that there were specific provisions of the Treaty, 6 in the application of which, as they were generally under2

Ibid., p. 7.

See the Preamble to Part X I I I and also Article 427 of the Treaty of Versailles. 8

«Article 427. « Pub. P. C. I. J. ( A / B ) , No. 19, p. 18. Article 427, principle (5), dealing with regulation of hours of work, was cited as an example, ibid., p. 18. 4

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stood, it might be assumed that the incidental regulation of the personal work of the employers was " potentially involved." With this manifest purpose of Part X I I I of the Treaty of Versailles established by internal evidence, the Court found itself unable to accept any construction obstructive of this object, especially when that construction was not supported by express provisions of the Treaty itself. The Court's answer to the question referred to it was necessarily in the affirmative. T H E FACTORY OF CHORZOW

In the eighth judgment T the Permanent Court of International Justice was confronted with the question of determining whether Article 23, paragraph 1 , of the Convention between Germany and Poland signed at Geneva, May 15th, 1922,® which gave the Court jurisdiction over questions arising out of " differences of opinion, resulting from the interpretation and application of Articles 6 to 2 2 , " contemplated differences in regard to reparations claimed for violation of those Articles. The Court declared that for the interpretation of Article 23, " account must be taken not only of the historical development of arbitration treaties, and of the grammatical and logical meaning of the words used, but also and more especially of the function which, in the intention of the Contracting Parties, is to be attributed to this provision." 9 It continued: 1 0 The object of these methods of obtaining redress—and that of Article 23 in particular—seems to be to avert the possibility »Pub. P. C. I. J. (A/B), No. 21. 8

19 L. N. Treaty Series 282.

• Pub. P. C. I. J. (A/B), No. 21, p. 24. 1» Ibid., p. 25.

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that, in consequence of the existence of a persistent difference of opinion between the contracting parties as to the interpretation and application of the convention, the interests, respect for which it is designed to assure, may be compromised. An interpretation which would confine the Court simply to recording that the convention had been incorrectly applied or that it had not been applied, without being able to lay down the conditions for the reestablishment of the treaity rights affected, would be contrary to what would, prima facie, be the natural object of the clauses; for a jurisdiction of this kind, instead of settling a dispute once and for all, would leave open the possibility of further disputes. The Court held that such a conclusion as deduced from the object of a clause like Article 2 3 , and, in general, of any arbitration clause, could only be defeated, either by " the employment of terms sufficiently clear to show a contrary intention on the part of the contracting parties," or by the fact that the convention had established a special jurisdiction regarding t h e m . " 1 1 A s there was no evidence suggesting that the Parties might have agreed not to submit to the Court's jurisdiction questions arising out of differences of opinion in regard to such reparations, the Court decided that they were embraced in the Article. The Court also adverted to the argument that it was a principle of international law that the breach of an engagement would involve an obligation to make reparation in an adequate form, 1 2 and that a different construction would be contrary also to the fundamental conceptions by which the movement in f a v o r of general arbitration had been characterized. 1 * But the main reason on which rested the Court's decision seemed to be that the purpose of Article 23 was so «Ibid. Ibid., p. 21.

12 13

Ibid., p. 23.

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manifest that the Court was unable to agree to a construction obstructive o f it at least when not supported by specific evidence. INTERPRETATION OF T H E GRECO-TURKISH AGREEMENT

OF

DECEMBER 1ST, 1 9 2 6 ( F I N A L PROTOCOL, ARTICLE I V )

In the sixteenth advisory opinion 1 4 the Permanent Court o f International Justice was requested to interpret the following provision of the fourth Article of the Final Protocol annexed to the Agreement of Athens between Greece and Turkey, signed December ist, 1 9 2 6 : " Any questions of principle of importance which may arise in the Mixed Commission in connection with the new duties entrusted to it by the Agreement signed this day and which, when that Agreement was concluded, it was not already discharging in virtue of previous instruments defining its powers, shall be submitted to the President of the Greco-Turkish Arbitral Tribunal sitting at Constantinople. The Arbitrator's award shall be binding. T h e Turkish Government maintained that according to this provision the Mixed Commission alone could decide whether or not the conditions existed under which a question could be referred to the arbitrator and only the Mixed Commission could refer a question to the arbitrator. O n the other hand, the Greek Government claimed that the two Governments could refer a question to the arbitrator, or one Government, if the other refused to join. T h e Court reviewed the various international agreements relating to the exchange of the Greek and Turkish populations and found that the manifest purpose of the Treaty was to facilitate the work of the Mixed Commission in carrying 14

Pub. P. C. I. J. (A/B), No. 31.

15

Quoted ibid., p. 5-

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out the exchange of populations. It declared that " due importance must be attached to this spirit in order to arrive at a correct interpretation " 18 of the Article. It said that, although a more satisfactory formula might have been framed, the text was nevertheless clear; and that the Article contained no express provision designed to settle the question by whom or when the questions with which the instrument dealt might be referred to the President of the Greco-Turkish Mixed Arbitral Tribunal, but that " from the very silence of the Article on this point it is possible and natural to deduce that the power to refer a matter to the arbitrator rests with the Mixed Commission when that body finds itself confronted with questions of the nature indicated." 1 1 It 1 4 continued: According to its very terms, Article I V of the Final Protocol expressly contemplates questions which may arise within the Mixed Commission; there can, therefore, be no doubt that only questions arising in the course of the deliberations of the Commission are contemplated. T h e Court reached the conclusion that an impediment to the fulfilment by the Mixed Commission of the important duties assigned to it would, in fact, be incompatible not only with the terms of Article I V , but also with the spirit underlying all the relevant, international agreements. It was of opinion that under the terms of the Article the Mixed Commission alone could decide whether the necessary conditions for reference existed, and that only the Mixed Commission could refer a question to the arbitrator. Thus, the design of the Contracting Parties, as manifested from various relevant international agreements to facilitate 17

Ibid.,

16

Ibid., p. 19.

p. 20.

18

Ibid.

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the Mixed Commission in fulfilling its duties was not allowed to be obstructed by the Greek construction. T H E GRECO-BULGARIAN " C O M M U N I T I E S "

In the seventeenth advisory opinion 19 the Permanent Court of International Justice was called upon to determine the conception of a " community " as used in Article 6, paragraph 2, of the Convention between Greece and Bulgaria respecting reciprocal emigration signed at Neuilly-sur-Seine on November 27th, 1919. 20 The Court thought it necessary, before answering the question put, to recall the general purpose which the Greco-Bulgarian Convention was designed to fulfill. The Court said that the Convention constituted, according to its Preamble, the execution of Article 56, paragraph 2, of the Peace Treaty concluded the same day between the Allied and Associated Powers and Bulgaria. Article 56 of the Peace Treaty formed a part of the provisions relating to the protection of minorities. This seemed to the Court to indicate the close relationship existing between the Convention and the general body of the measures designed to secure peace by means of the protection of minorities. It was in this spirit, as stated in the Preamble, that the Allied and Associated Powers considered it opportune that the reciprocal and voluntary emigration of minorities in Greece and « Pub. P. C. I. J. ( A / B ) , No. 37. 20 Ibid., p. 5. Article 6 provides: " Persons who, in execution of the foregoing provisions, exercise the right of emigration, shall be free to take or to have transported their movable property of every kind without any duty, whether export or import, being levied from them on this account. " Similarly, in cases where the right of emigration is exercised by members of communities (including churches, convents, schools, hospitals or foundations of any kind whatever) which on this account shall have to be dissolved, the Mixed Commission provided for in Article 8 shall determine whether and in what circumstances such members shall have the option of freely taking with them or having transported the movable property belonging to the communities."

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Bulgaria should be regulated by the Convention. " It follows said the Court, " that this Convention cannot apply to persons other than those who formed minorities in either one country or the other." 2 1 The Court also pointed out that the purpose of the Treaty was to eliminate or reduce the centres of irredentist agitation, and that it therefore not only provided that the departure of persons wishing to emigrate was not to be hindered, but also tried to prevent the material losses which their emigration might cause. " Everything leads to the conclusion that the Convention regards the conception of a ' community ' from the point of view of this exclusively minority character." 22 It was in the light of these circumstances that the Court defined a " community " within the meaning of the Convention as the following : 2 8 By tradition, which played so important a part in Eastern countries, the " community " is a group of persons living in a given country or locality, having a race, religion, language and traditions of their own, and united by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, securing the instruction and upbringing of their children in accordance with the spirit and traditions of their race and mutually assisting one another. The Court also observed that " nowhere is evidence to be found that the Greco-Bulgarian Convention of November 27th, 1 9 1 9 , intended some special stipulation to depart in any of its provisions and particularly in Article 6, paragraph 2, from this general traditional conception." 24 S o the Court 21

Ibid., p. 19.

22

Ibid., pp. 21-22.

23

Ibid., p. 21. « Ibid.

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concluded that, in the absence of specific evidence to the contrary, this traditional conception of a " community " which was in conformity with the purpose of the Treaty (for protection of minorities) should be considered adopted by the Parties. Besides the four cases already discussed, there are others in which the Court seems to have followed the same method of interpretation, namely, to construe the terms of a treaty in conformity with its purpose and reject constructions which would render abortive the manifest object of the agreement. Thus, in the second advisory opinion,25 in deciding that the competence of the International Labor Organization extended to international regulation of the conditions of labor of persons employed in agriculture, the Court said that the Preamble to Part X I I I of the Treaty of Versailles declared that the High Contracting Parties, " moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world " agreed to establish a permanent organization to facilitate international regulation of conditions of labor, and that this idea militated against any argument for excluding agriculture which, as an industry, employed half of the world's wage-earners.26 In the sixth advisory opinion,27 concerning the competence of the League of Nations over questions arising out of the treatment of German minorities in Poland, the Court said that the Preamble to the Minorities Treaty, signed on June 28th, 1919, declared that the Allied and Associated Powers were " anxious to ensure the execution of the provisions of Article 93 " (of the Treaty of Versailles, which provided in principle for the protection of minorities in Poland) and that Poland desired " to conform her institu25

Pub. P. C. I. J . ( A / B ) , No. 2.

26

Ibid., pp. 23-27; see also infra, pp. 95, 141.

" P u b . P. C. I. J . ( A / B ) .

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tions to the principle of liberty and justice and to give a sure guarantee to the inhabitants of the territory " over which she assumed sovereignty ; that it was " for this purpose " of protecting the interests of the minorities, according to the Preamble, that the Minorities Treaty was concluded; " and that it was for the same purpose that Article 12 of the Minorities Treaty recognized Poland's international obligation in such matters and placed the provision under the guarantee of the League of Nations.2® In view of this manifest object of the Treaty, the Court acknowledged the competence of the League.®0 The Court, so far, in the cases last mentioned, has not yielded to any construction which tended to obstruct the manifest purposes of the contracting parties as deduced from internal evidence of the treaty itself and sometimes also from external evidence. H O N D U R A S V. SALVADOR A N D G U A T E M A L A

This was a case decided by the Central American Court of Justice, on December 19, 1908." Article I of the General Treaty of Peace and A m i t y concluded by the Central American States, signed at Washington, December 28, 1907, 82 under which the Court was created, gave the Court jurisdiction over cases in which " the respective foreign offices should have been unable to reach an agreement." T h e Ibid., pp. 19-20.

28 291

bid., pp. 20-21.

Ibid., p. 25. See also Interpretation of the Statute of the Memel Territory (Pub. P. C. I. J. [ A / B ] , No. 49) where the Court said: " T h e Convention of Paris of 1924 and the statute annexed to it must be considered as a whole in order to understand the régime which the four Powers and Lithuania intended to establish for the Memel Territory," (ibid., p. 22). 30

813 32

Am. J. Int. L. 729.

2 Malloy 2392.

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Government of Honduras, without first proceeding through the diplomatic channel, submitted to the Court a case against the Governments of Salvador and Guatemala. T h e Government of Guatemala objected to the Court's jurisdiction on the ground that the clause " in case the respective foreign offices should have been unable to reach an a g r e e m e n t " meant that " negotiations looking to a settlement between the respective foreign offices had begun and concluded without success " 88 and that in the present case the Government of Honduras had not even resorted to negotiations before it submitted the case to the Court. The Government of Guatemala stated further that the provision was undoubtedly due to the design of the Contracting Parties to respect the sovereignty of the States, which was, to a certain extent, limited by the creation of the Court, and that, therefore, the Court should not take jurisdiction over cases until it w a i shown that it was impossible to reach an agreement through diplomatic channels."4 The Court declared that such a view of the matter found

35

no foundation either in the wording of the law [Article I of the Treaty], or much less in the correct interpretation of its spirit, which, in accordance with the principles governing the interpretation of international compacts, should be investigated with a view to deducing from its purport the consequences most in conformity with the order of ideas and interests to which it corresponds and most in conformity with the purpose of maintaining the full efficacy of the provision itself and as related to the remaining articles of the Treaty. It observed further that the phrase " in case the respective 33

Quoted 3 Am. J. Int. L. 729, 730.

See The Defense of the Government of Guatemala before the Central-American Court of Justice at Cartago, in the Case of Honduras (Washington, D. C., 1908), pp. 31-32. 84

u

3 Am. J. Int. L. 729, 730.

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foreign offices should have been unable to reach an agreement " was far from entailing as a corollary " the imperative precept that efforts in this direction must be begun and concluded in every case." According to the Court, the purpose of the Convention was to maintain peace in Central America by the creation of an international court of justice. A situation which might lead to the detriment of American peace was not always the result of unsuccessful endeavors but " usually the result of circumstances which render it necessary at once to characterize such steps as useless or perhaps dangerous " to peace.38 The Court also referred to Article XVIII of the Treaty, by which the Court was assigned a function of arresting the course of an armed conflict by determining, from the very moment a claim was filed, the situation in which the contending governments were to remain pending the rendition of the award. This function would not be fulfilled, declared the Court, if the construction of the Guatemalan Government were accepted, and the situation in which the contending Governments were to remain pending the rendition of the award, presupposed the right to have recourse to the Court without delay in matters of urgency. And, above all, if the Guatemalan construction were followed, " the humanitarian and unquestionably utilitarian purpose for which this important Article was inserted would be essentially frustrated." 37 In this case the Court held that it was the design of the Contracting Parties, by adopting the phrase " in case the respective foreign offices should have been unable to reach an agreement to include cases wherein diplomatic negotiations were not resorted to at all when one of the litigating parties might feel such a step useless or perhaps dangerous Ibid. «Ibid.

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to peace. T o reach this conclusion, the Court relied upon the manifest object of the Treaty, which was to maintain peace in Central America by creating the Court, and also upon the function assigned to the Court by Article XVIII to act promptly in case of emergency. In view of these conditions the Court was unable to accept the Guatemalan construction, which seemed restrictive of the manifest purpose of the Contracting Parties. 88 In this connection, it might be useful to compare the attitude taken by the Permanent Court of International Justice in the Mavrommatis Palestine Concessions Case." The Court said : 4 0 The second condition by which this Article 41 defines and limits the jurisdiction of the Court in questions arising out of the interpretation and application of the Mandate, is that the dispute cannot be settled by negotiations. Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches ; it may suffice that a discussion has been ss

For other cases decided by international tribunals, see also the Sally, 4 Moore, International Adjudications, 459, especially, pp. 479480 where Mr. Gore said : " In the Preamble to the Treaty the Parties declare an intention to terminate their differences in such manner as to produce mutual satisfaction. It is directly contrary to this avowed intention to adopt a construction which places it in the power of the party promising to postpone, if not totally defeat, the performance of the promise which was to afford satisfaction agreed for." See also the Murphy's Case, 3 Moore, Arbitrations, 2262, especially, p. 2266 ; Chamizal Arbitration between the United States and Mexico, 5 Am. J. Int. L. 782, especially p. 800 ; and Ralston's opinion on " Time Extended for Submitting Claims ", Ralston, Venezuelan Arbitrations of 1903, p. 650. Cf. what Ralston said in regard to the power of the Commission in the French Company of Venezuelan Railroads Case, Ralston, Report of the French-Venezuelan Mixed Claims Commission of 1902, especially p. 443 et seq. »»Pub. P. C. I. J. ( A / B ) , No. 940

Ibid., p. 13.

41

Article 26 of the Mandate for Palestine, quoted ibid., p. 11.

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commenced and that this discussion has been very short; this will be the case if a deadlock is reached, or if finally a point is reached at which one of the parties definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiations. T h e difference between the views of these two tribunals in interpreting clauses of this nature lies in the fact that the Permanent Court of International Justice felt it sufficient to say that " the dispute cannot be settled by negotiations " when the negotiations had commenced and a deadlock had been reached, while the Central American Court of Justice would include in this category cases where one of the parties deemed it useless to resort to diplomatic negotiations at all. T h e latter reached this conclusion by relying upon the manifest object of the Treaty involved in that case. FORD V. UNITED STATES

In the cases decided by the Supreme Court of the United States, Ford v. United States*2 is one illustrative of a method of interpretation similar to that used in the Factory of Chorzow Case. Article II o f the Treaty with Great Britain, proclaimed M a y 22, 1 9 2 4 , " provided measures to prevent illicit importation of intoxicating liquor into the United States, and that, for this purpose, at specified distances beyond the territorial waters of the United States it was agreed that a British " vessel may be seized and taken into a port of the United States for adjudication in accordance with such laws." ** One question for interpretation in this case was whether the above-cited provision, especially the word " vessel " therein, contemplated not only the vessel itself but also goods and passengers on board the ship. 45 42

273 u . S. 593-

43

18 Am. J. Int. L. Supp. 127.

41

Article II, paragraph (2), ibid., p. 128.

46

273 U. S. 593, 600-601, 610.

gO

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A f t e r having reviewed the Preamble of the Treaty, which said that the two nations, being desirous of avoiding any difficulties which might arise between them in connection with laws in force in the United States on the subject of alcoholic beverages, had decided to conclude a convention f o r the purpose, and also the Articles thereof, the Court said that the Treaty indicated a " considerable purpose " on the part of Great Britain to discourage her merchant ships f r o m taking part in the illicit importation of liquor into the United States." T h e Court said further that the seizure and taking into port of the vessel necessarily included the cargo and persons on board, because they could not be set adrift or thrown overboard; that the immunity of cargo and persons on the high seas came from the immunity of the vessel, and that, when the vessel lost its immunity, they lost theirs too; that, when they were brought into the jurisdiction of the district court, they were just as much subject to its jurisdiction as the ship; and that, consequently if they committed an offence against the laws of the United States, they could not escape conviction. This construction, according to the Court, could only be defeated by the fact that the Treaty " affirmatively confers on them immunity from prosecution but " there are no express words granting such immunity." 48 " W h a t reason ", asked the Court, " could Great Britain have for a stipulation clothing with immunity either contraband liquor which should be condemned or the guilty person aboard, when the very object of the Treaty was to help the United States in its effort to protect itself against such liquor and such persons, f r o m invasion by the sea ? " 49 T o give 48

Ibid., p. 609.

"Ibid.,

p. 611.

*» Ibid. *9 Ibid., p. 612.

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immunity to the cargo and the guilty persons, according to the Court, would be to release both the guilty persons and the liquor " for another opportunity to flout the laws of a friendly government which it was the purpose of the Treaty to discourage." 50 The Court also adverted to the internal evidence that paragraph i of Article II especially permitted examination of the ship's papers and inquiries addressed to those on board to ascertain whether, not only the ship, but also those on board were involved in the importation of intoxicating liquor into the United States. It concluded that it was " no straining of the language of the Article therefore " to interpret the disputed phrase as embracing not only the vessel but also " everything on board." 52 T h e resemblance between this case Chorzow Case lies in the fact that in object of the treaty being known, the unable to accept a construction tending fest purposes abortive.

and the Factory of both cases, with the tribunal found itself to render such mani-

S A N T O V I N C E N Z O V. EGAN

In the case of Santovincemo v. Egan decided by the Supreme Court of the United States on November 23, 1 9 3 1 , " the Court was confronted with the question of interpreting Article V I of the Treaty with Persia of 1 8 5 6 , " which provided: 6 5 In case of a citizen or subject of either of the Contracting 5 51

Ibid.

Ibid., p. 610.

52 Ibid. See also the Frances Louise, 1 Fed. (2d) 1004; the Sagotind, 11 Fed. (2d) 405. Cf. Cook v. United States, 53 Sup. Ct. 305. 53

284 U. S. 30.

54

2 Malloy 1371.

85

Quoted 284 U. S. 30, 35-36.

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Parties dying within the territories of the other, his effects shall be delivered up integrally to the family or partners in business of the deceased; and in case he has no relations or partners, his effects in either country shall be delivered up to the consul or agent of the nation of which the deceased was a subject or citizen, so that he may dispose of them in accordance with the laws of his country. The Court observed that the Article did not contain the qualifying words " conformably with the laws of the country " as in the Treaty with the Argentine Confederation of 1 8 5 3 , " or the phrase " so f a r as the laws of each country will p e r m i t " as in the Consular Convention between the United States and Sweden of 1 9 1 0 . " " The omission from Article V I of the Treaty with Persia of a clause of this sort, so frequently found in treaties of this class, must be regarded as deliberate. In the circumstances shown, it is plain that the effect must be given to the requirement that the property of the decedent shall be delivered up to the Consul." 58 Arguments were advanced to the effect that the Parties to the Treaty with Persia contemplated only citizens or subjects resident in the territories of each other but not those domiciled therein. The Court said: " The language of the provision suggests no such distinction, and if it is to be maintained, it must be the result of a construction based upon the supposed intention of the Parties to establish an exception of which their words gave no hint." 59 T h e Court continued: 9 0 In order to determine whether such a construction is admis56

1 Malloy 20. " 3 U. S. Treaties 2846. "284 U. S. 30, 37. M Ibid. •0 Ibid.

CONSTRUCTIONS

AND MANIFEST

PURPOSES

sible, regard should be had to the purpose of the Treaty and to the context of the provision in question. The Treaty belongs to a class of commercial treaties the chief purpose of which is to promote international intercourse, which is facilitated by residence. The citizens or subjects of one party who are permitted under the Treaty to reside in the territory of the other party are to enjoy, while they are such residents, certain stipulated rights and privileges. This was the purpose of the Treaty. The Court observed further that neither " domiciliary intent " nor the acquisition of a domicile in fact was made, in the Treaty, the test of the enjoyment of these rights and privileges. The Court referred to other Articles wherein the words " citizens or subjects " were used and noted that no distinction between residence and domicile was provided. It referred also to Article V which provided that the " citizens " of the United States were to enjoy extraterritoriality in Persia, and said that, if " citizens of the United States " were to be construed as to exclude Americans domiciled in Persia, " it would thwart the major purpose of the Treaty to exclude from the important protection of these provisions citizens of the United States who might be domiciled in Persia." 81 The Court concluded that " citizens and subjects " as used in various articles of the Treaty " clearly " referred to nationality, " irrespective of the acquisition of a domicile as distinguished from residence." This conclusion was in harmony with the purpose of the Treaty; while a construction of the disputed terms serving to exclude those who had acquired a domicile would, when applied to Article V, " thwart the major purpose o f the Treaty." It was, therefore, rejected. 82 In interpreting treaties tribunals frequently refer to the 61

Ibid., pp. 38-39.

See also the Pisarro, U. S. 39982

2 Wheat. 227, 245, and Yee Won v. White, 256

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purpose of the treaty in question. Where such purpose of the treaty can be easily deduced from the preamble or from viewing the various aspects of the treaty as a whole (and sometimes also from external evidence), the general practice of tribunals has been not to accept a construction, subversive of or tending to thwart, the manifest design of the contracting parties.

CHAPTER

V

A D M I S S I B I L I T Y OF PREPARATORY

WORK

WHETHER the work done in preparation of a treaty may be used to prove a design of the contracting parties contrary to what is seemingly to be inferred from the text itself will be the topic of investigation in this chapter. COMPETENCE OF T H E INTERNATIONAL LABOR ORGANIZATION IN REGARD TO INTERNATIONAL REGULATION OF T H E CONDITIONS OF LABOR OF PERSONS EMPLOYED IN AGRICULTURE

In this case 1 the Permanent Court of International Justice was requested to give an advisory opinion on the question whether the competence of the International Labor Organization extended to international regulation of the conditions of labor of persons employed in agriculture. The Court took the position that in deciding this question it should read Part X I I I of the Treaty of Versailles (dealing with labor) as a whole and that its meaning could not be determined merely from particular phrases which, if detached from the context, might be interpreted in more than one sense.2 The Court said that, as Part X I I I expressly declared that the design of the Parties was to establish a permanent labor organization, this in itself strongly militated against the argument that agriculture, which was, beyond all question, the most ancient and the greatest industry in the world, em1

Pub. P. C. I. J . ( A / B ) , No. 2.

See also supra, p. 84, infra, pp.

141-143. 2

Pub. P. C. I. J. ( A / B ) , No. 2, p. 23. 95

96

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ploying more than half of the world's wage-earners, was to be considered as left outside the scope of the International Labor Organization, because it was not expressly mentioned by name.3 The Court declared that the comprehensive character of Part X I I I was clearly shown in the Preamble, which said that " conditions of labor " existed involving such injustice, hardship and privation " to large numbers of persons as to produce unrest so great that the peace and harmony of the world are imperilled ", and which declared that a " permanent organization " was set up " for the promotion of the objects set forth in the Preamble." * It was these comprehensive terms used in the Treaty which convinced the Court that the answer should be in the affirmative. The Court then said that much prominence had been given in the written and oral arguments to the question of admitting in evidence the preparatory work of the commission on international labor legislation, by which Part X I I I of the Treaty of Versailles was formulated and submitted to the Peace Conference. The Court referred to the arguments advanced by the French Government 5 to the effect that, " as the terms of the Treaty clearly excluded the claim of competence, there was no room for the consideration of extrinsic evidence to the contrary, and that Powers who took no part in the preparatory work were invited to accede to the Treaty as it stood, and did so accede." 8 The Court answered that it did not " think it necessary to discuss these contentions, as it has already on the construction of the text itself reached the conclusion, and there is certainly nothing in the preparatory work to disturb this conclusion." 7 3

Ibid., pp. 24-35.

* Ibid., p. 27.

" See " Additional Observations " by M. de Lapradelle, Pub. P. C. I. J. ( c ) , No. 1, pp. 182, 187-189. 5

• Pub. P. C. I. J. ( A / B ) , No. 2, p. 41. 7

Ibid.

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T h e issue here seemed to be that the French Government suggested that since a literal construction of the language used would naturally leave out agriculture f r o m the competence of the International Labor Organization, preparatory work should not be introduced to disturb this conclusion. T h e Court's answer was that even without the aid of the preparatory work in question, the Court was able to reach its conclusions; so it felt it unnecessary to consider the soundness of the French argument in the instant case. T h e Court was satisfied also that the preparatory work contained nothing to suggest a conclusion at variance with that at which it had arrived by other means. FRONTIER BETWEEN T U R K E Y AND IRAQ

In interpreting the word " decision " used in Article 3 of the Treaty of Lausanne o f July 24th, 1923, in this case 8 the Turkish Government contended that during the negotiations at the Conference o f Lausanne, L o r d Curzon, the British delegate, made a declaration which led to the adoption by Turkey of Article 3 of the Treaty of Lausanne and which, consequently, should be used to interpret that Article. The 9 statement of Lord Curzon read as f o l l o w s : I do not know what it (the Council) will do; but my point is that the Turkish delegation will be there just like ourselves, and when the two cases have been stated, you will get the most impartial examination which it is possible to secure. Further, Article 5 of the Covenant provides that the decision of the Council, upon which the Turkish Government will be represented, will have to be unanimous, so that no decision can be arrived at without their consent. This, according to the Turkish Government, indicated that the Parties did not contemplate an arbitration by the Council 8

Pub. P. C. I. J. ( A / B ) , No. 17; see also supra, pp. 35-37.

•Quoted Pub. P. C. I. J. ( A / B ) , No. 17, p. 22.

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of the League of Nations when they adopted the word " decision " to be reached by that body in Article 3. 1 0 The Court said that, from an examination of the text of the Article, the word " decision" employed therein meant a definitive and binding settlement on the matter of frontiers to be sought from the Council of the League, and that, since the Article was " sufficiently clear " in itself to enable the Court to determine the nature of the decision to be reached by the Council, the question did not " arise whether consideration of the work done in preparation of the Treaty of Lausanne would also lead to the same conclusions." " Nevertheless " , it continued " , it may be well also to consider Article 3 and the construction which the Court has placed upon it, in the light of the negotiations at Lausanne, for the Turkish Government has cited certain facts connected with those negotiations in support of its adverse opinion." 1 1 The Court proceeded to examine the speech made by Lord Curzon during the earlier part of the negotiations at Lausanne to the effect that the Covenant provided for unanimity for decisions so that no decision could be arrived at by the Council without Turkey's consent. The Court found that the passage could not be used to interpret Article 3, because the passage formed a part of a speech formulating a proposal which was rejected by the Turkish Delegation at a time when Article 3 did not exist even in draft form, and at the adoption of Article 3 five months later, the legal position was fundamentally modified and no such reference could be found either in the drafts for Article 3 submitted by the Parties 10

For the text of the Article see supra, p. 35. Ibid. In this connection, Sir Douglas Hogg, the British agent, contended that it was not admissible that preparatory work should be allowed to contradict the actual text of the Treaty, and that, moreover, such evidence being oral should not be admitted to contradict the terms of an agreement as expressed in writing by the Parties, Pub. P. C. I. J . (C), No. 19, pp. 20-23. 11

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or in correspondence or records of proceedings belonging to that period. The Court observed further, by w a y of a dictum, that the construction suggested by the Turkish Government would be " incompatible with " the Court's interpretation of the Article already arrived at " from the grammatical and logical construction of the Article itself " as well as " the role assigned to the Article in the Treaty." 12 T h i s dictum seemed to suggest that the Court might refuse to follow a construction deduced from preparatory work if such a construction should be found to be contrary to the Court's conclusion already drawn from an analysis of the text. Such a conflict between preparatory work and a " sufficiently c l e a r " text, however, did not exist in the instant case. There was no such an issue before the Court which, as has been noted, admitted and considered the preparatory work in question in detail and found that it did not refer to the Article in dispute. T h e dictum is not, therefore, to be looked upon as a certain token or indication of what the Court might, in a particular case, feel free to do, especially if the preparatory work strongly exhibited a common design of the contracting parties at variance with a plain meaning. Obviously, it does not mirror or reflect any previous ruling. THE S. S. LOTUS

In the case of the 5". Lotus,13 the Permanent Court of International Justice was dealing, among other things, with the interpretation of the term " international law " as used in Article 15 of the Convention of Lausanne," of July 24th, 1923, which read as follows: Subject to the provisions of Article 16, all questions of juris12Pub.

P. C. I. J. ( A / B ) , No. 17, p. 23.

« Pub. P. C. I. J. ( A / B ) , No. 22. 14

Quoted

ibid.,

pp. 9, 16.

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o

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diction shall, as between Turkey and the other Contracting Powers, be decided in accordance with the principles of international law. The French Government maintained that the meaning of the expression " principles of international l a w " in the Article should be sought in the light of the evolution of the Convention. 18 The French Government stated also that during the preparatory work, the Turkish Government, by means of an amendment to the relevant article of a draft for the Convention, sought to extend its jurisdiction to crimes committed in the territory of a third state, provided that under Turkish law such crimes were within the jurisdiction of Turkish courts. This amendment, in regard to which the representatives of France and Italy made reservations, was definitely rejected by Great Britain; and the question having been subsequently referred to the drafting committee, the latter confined itself in its version of the draft to a declaration to the effect that questions of jurisdiction should be decided in accordance with the principles of international law. The French Government deduced from these facts that the exercise of jurisdiction in the prosecution of Demons (a French officer of the S. S. Lotus which collided with the Turkish collier Boz-Kourt on the high seas) was " contrary to the intention which guided the preparation " of the Convention of Lausanne.19 The Court made the following observations: " The Court must recall in this connection what it has said in some of its preceding judgments and opinions, namely, that there is no occasion to have regard to the preparatory work if 1S Cf. the French Government's attitude in the second advisory opinion in regard to the use of preparatory work in treaty interpretation, supra, p. 96.

™ Ibid., p. 16. " Ibid., pp. 16-17.

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the text of the convention is sufficiently clear in itself. [It should be noted that these remarks had been made in cases where the Court declared that there was nothing in the preparatory work calculated to overrule its conclusions deduced from the text itself.] Now, the Court considers that the words "principles of international law as ordinarily used, can only mean international law as it is applied between all nations belonging to the community of states. This interpretation is born out by the context of the Article itself which says that the principles of international law are to determine the question of jurisdiction—not only criminal but also civil—between the Contracting Parties, subject only to the exception provided for in Article 16. Again the Preamble of the Convention says that the High Contracting Parties are desirous of effecting a settlement in accordance with modern international law, and Article 28 of the Treaty of Lausanne, to which the Convention in question is annexed, decrees complete abolition of capitulations " in every respect." In these circumstances it is impossible—except in pursuance of a definite stipulation—to construe the expression " principles of international law " otherwise than as meaning the principles which are in force between all independent nations and which therefore apply to all Contracting Parties. T h e C o u r t , h o w e v e r , did examine the preparatory w o r k in question and f o u n d that " the records of the preparation o f the C o n v e n t i o n respecting conditions of residence and business and jurisdiction would not furnish a n y t h i n g calculated to overrule the construction indicated by the actual terms o f A r t i c l e 1 5 . "

18

T h e C o u r t observed further that

ltIbid., p. 17. Judge Moore said, in his dissenting opinion, " b a t the passages cited do not in my opinion have the effect which it is sought to ascribe to them. In so saying I am not to be understood as expressing an opinion on the question whether such evidence is admissible for the purpose of throwing light upon the interpretation of treaties. The language of Article 15 is simple and plain and does not stand in need of interpretation from any source outside the terms of the Treaty itself." Ibid., p. 67.

j02

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the original d r a f t which limited Turkish jurisdiction to crimes committed in Turkey itself, was also discarded by the drafting committee, and that " this circumstance might with equal justification give the impression that the intention of the framers of the Convention was not to limit this jurisdiction in any w a y ", 1 8 and that, the t w o opposing proposals designed to determine definitely the area of application of Turkish criminal law having been discarded, " the wording ultimately adopted by common consent for Article 15 can only refer to the principles of general international law relating to jurisdiction." 20 In this case a study of the preparatory work by the Court seemed to strengthen its conclusions already deduced f r o m the text itself. T h e Court under such circumstances declared, as it did in the twelfth advisory opinion, 21 that it was unnecessary to resort to such work for the purpose of changing " the plain meaning of the t e x t " . Nevertheless, the Court discussed, in both cases, the preparatory work in detail with a view to dispelling any possible doubt raised by one of the litigating parties. JURISDICTION OF T H E EUROPEAN COMMISSION OF T H E D A N U B E BETWEEN GALATZ AND BRAILA

In the fourteenth advisory opinion 2 2 the Permanent Court of International Justice was confronted with the dispute that had arisen between Great Britain, France, and Italy on the one side, and Roumania on the other as to the nature of the jurisdiction of the European Commission of the Danube over a sector of that river between Galatz and Braila. 23 Article 6 of the Definitive Statute of the Danube provided: 2 4 !»Ibid., p. 17.

20

Ibid.

21

Supra, pp. 97-99-

22

Pub. P. C. I. J. ( A / B ) , No. 25.

24

Quoted ibid., p. 24; the 5th Article of the Definitive Statute provided:

23

Ibid., p. 7.

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WORK

L a Compétence de la commission européenne s'étend, dans les mêmes conditions que par le passé et sans aucune modification à ses limites, actuelles, sur le Danube maritime, c'est-à-dire, depuis les embouchures de fleuve jusq'au point où commence la compétence de la commission international. This Article stipulated that the jurisdiction of the European Commission extended from the mouths of the river to a point where the jurisdiction of the International Commission (established under Article 347 of the Treaty of Versailles) began, definitely including the contested sector, but it said that the jurisdiction was to be " in the same conditions as before " and that there was to be " no modification of the existing limits." Regarding the nature of the jurisdiction of the European Commission of the Danube over the contested sector, the Roumanian Government contended that the Commission had only technical, but not juridical,* 5 powers, although it admitted that the Commission had both powers below Galatz. The other Governments contended, on the other hand, that the Commission had all the powers over the Galatz-Braila sector, which it had below Galatz. The Court said that it was important to lay stress on the fact that the text not only did not say what were the powers of the European Commission which would not extend over the sector in question, but also did not even affirm that there were powers so limited.28 The question seemed to the Court to be whether the " same conditions as before " and the " existing limits " referred to in Article 6 were such conditions and limits as might be " La Commission européenne exerce les pouvoirs qu'elle avait avant la guerre. Il n'est rien changé aux droits, attributions et immunités qu'elle tient des traités, conventions, acts et arrangements, internationaux relatifs au Danube et à ses embouchures." Ibid. 2» Ibid., p. 28. 2« Ibid., p. 26.

I04

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inferred from rules of law or those which existed in fact before the W a r . " The Court reviewed the legal arrangements 28 before the War and took notice that Article I of the Treaty of London of 1883, 24 according to which the exercise of the powers of the Commission was extended from Galatz to Braila, was not signed by Roumania. " But to assume that for this reason the European Commission possesses no powers at all " in the contested sector was, in the Court's opinion, inconsistent with the Definitive Statute, which fixed the territorial extent of the powers of the Commission from the mouths to the point where the authority of the International Commission commenced, and which " therefore excludes the possibility that no powers whatever existed between Galatz and Braila." Moreover, the European Commission had in fact exercised certain powers over the sector before the War. The Court thought it " quite reasonable to suppose " that the controversy was settled on the basis of the status quo ante bellutn, and that, if there were powers of the Commission the territorial extent of which was more restricted than the territorial extent of the other powers, the provision was to maintain such existing limits. The text, according to the Court, simply referred to a situation which existed before the War between Galatz and Braila, and that because the Commission had actually exercised some powers over the sector before the War no matter what the legal ground and nature of these powers might have been, the confirmation of the jurisdiction already exercised by the Commission before the war " might easily have appeared to be the best possible solution of the difficulty." ao The Court 27

Ibid.

28

Quoted ibid., pp. 11, 26-27.

29

Quoted ibid., p. 27.

"Ibid.

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found that, moreover, the restoration of the status quo ante was one of the leading principles of the provisions of the Treaty of Versailles concerning the Danube as well as those of the Definitive Statute.*1 " Based solely on the language employed in the Statute and on historical facts upon which it rests the Court concluded that the conditions referred to in Article 6 were the conditions which existed in fact before the War, and that the effect of the Article was to maintain and confirm these conditions, thus putting an end to the questions which had arisen under Article I of the Treaty of London. And the Court found that in fact the Commission exercised practically the same powers between Galatz and Braila as below Galatz." The Court said that it reached this conclusion 84 bellum

without any reference to preliminary discussions or drafts. The Court adheres to the rule applied in its previous decisions that there is no occasion to have regard to the protocols of the conference at which a convention was negotiated in order to construe a text which is sufficiently clear in itself. If, however, some doubt could still remain upon the true meaning of the words " dans les mêmes conditions que par le passé et sans aucune modification à ses limites actuelles ", it will be shown later that the preparatory work fully confirms the conclusions at which the Court has now arrived. It should be noted again that the so-called " rule applied in its previous decisions " referred to by the Court was previously invoked only in cases where the preparatory work furnished evidence tending to strengthen rather than to « Ibid. « Ibid., p. 28. 83 84

Ibid.

Ibid. The English text of the advisory opinion was declared authoritative. The French translation used the word " principe " for the English word " r u l e " .

lo6

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weaken the deductions drawn from the text. W h e r e such work was confirmatory, a reference to it was unnecessary. T h e Court said again that it " must recall in this connection that preparatory work should not be used for the purpose o f changing the plain meaning of a text." 85 Nevertheless, the Court in fact examined the preparatory work in question and s a i d : 8 8 Moreover, the records of the preparation of the Definitive Statute do not, in the opinion of the Court, furnish anything calculated to overrule the construction indicated by the actual terms of Article 6. Obviously, the members of the conference were not all well acquainted with the situation which existed before the war between Galatz and Braila; what they agreed upon was to maintain, in conformity with the Treaty of Versailles, that situation whatever it may have been. It is also important to remark that the Roumanian plenipotentiary himself referred to the distinction between technical and juridical powers only because, in his opinion, it coincided with the real situation in the sector Galatz-Braila before the war. T h e position taken by the Court in regard to the use of preparatory work in this case, and the circumstances which caused the Court to take the position it did, were similar to those o f the earlier cases previously discussed in this chapter." TERRITORIAL JURISDICTION OF T H E INTERNATIONAL COMMISSION OF T H E RIVER ODER

In connection with the sixteenth judgment, 8 4 a memorial submitted to the Permanent Court of International Justice 35

Ibid., p. 31.

36

Ibid., pp. 31-32.

Cf. the attitude taken by the Permanent Court of Arbitration in the Japanese House Taxes Case, Scott, The Hague Court Reports, p. 77. ST

3

» Pub. P. C. I. J . ( A / B ) , No. 36.

See supra, pp. 61-65.

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by the Polish Government referred in several places to the work done in preparation of the relevant Articles of the Treaty of Versailles and quoted therein extracts f r o m the minutes containing the record of the work.** The six opposing Governments requested the Court " in the present case to follow its previous decisions in refusing to admit any recourse to such preparatory work f o r the purpose of putting upon a text an interpretation different from the plain meaning (sens naturel) of the language used." 40 This, however, does not seem to be a very accurate statement, because, according to the Court's own records, the Court in all its previous decisions admitted and considered in fact such preparatory work and found nothing therein calculated to overrule its constructions, in spite of the fact that a dictum frequently tended in a different direction. T h e Court, in an Order made on August 20th, 1 9 2 9 / " declared that as three of the Parties concerned did not take part in the work of the Conference which prepared the Treaty of Versailles, and " as, accordingly, the record of this work cannot be used to determine in so f a r as they are concerned, the import of the Treaty ", 4 2 so the record should not be invoked in the case. The Court reached this conclusion on the ground that, in any particular case, no account could be taken of evidence which was not admissible in respect of certain of the parties to that case. 43 The Court noted also that the only preparatory work in question was that performed by the Commission on Ports, Waterways and Railways of the Peace Conference, and that the Court's decision applied with equal force in regard to »» Pub. P. C. I. J . ( A / B ) , No. 36, p. 39.

*o Ibid. 41

Annex 3 to the Judgment.

« Ibid., p. 42. «Ibid.

I 0

8

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the passages which had previously been published from that record and to the passages which were reproduced for the first time in the written documents relating to the case.44 This is the only case in which the Permanent Court of International Justice rejected in fact the work done in preparation of a treaty. The Court did not reject such evidence because it might disturb deductions drawn from the text itself ; it did so on the ground that three of the parties to the dispute did not participate in the original negotiations. It must be obvious that preparatory work, so-called, does not include memoranda prepared and discussed by a part of the negotiators of a treaty and withheld from or not brought to the attention of the others or of those who acceded to the treaty at a later date. The court emphasized a wise distinction which it will be recalled, was raised in argument in behalf of France in the case productive of the second advisory opinion of the same tribunal. TREATMENT OF POLISH NATIONALS AND OTHER PERSONS OF POLISH ORIGIN OR SPEECH I N DANZIG

In this c a s e " the Permanent Court of International Justice was called upon to deliver an advisory opinion concerning the restrictions placed upon Danzig by the Principal Allied and Associated Powers by means of certain treaty stipulations in regard to the treatment of Polish Minority in Danzig. The issue depended upon the interpretation of the following: 44 Ibid. Cf. Hetm and Chantant v. German State, decided by the Franco-German Mixed Arbitral Tribunal, 3 T. A . M. 50, where the Tribunal said: "Lorsqu'il s'agit d'un traité collectif, qu'il ne parait guère possible, en règle générale, de donner à des études faites dans un des états contractants la valeur, source décisive d'interprétation; que, toutefois, on pourrait admettre dérogation à cette règle générale lorsqu'il s'agit d'une question intéressant presque exclusivement l'un des états signataires." Ibid., p. 56.

« Pub. P. C. I. J . ( A / B ) , No. 44.

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( 1 ) Article 104 of the Treaty of Versailles ( 5 ) : [The Principal Allied and Associated Powers undertake to negotiate a treaty between the Polish Government and the Free City of Danzig] to provide against any discrimination within the Free City of Danzig to the detriment of citizens of Poland and other persons of Polish origin or speech. (2) Article 33, paragraph I, of the Convention of Paris: 4 4 The Free City of Danzig undertakes to apply to racial, religious and linguistic minorities provisions similar to those which are applied by Poland and the Allied and Associated Powers, to provide, in particular, against any discrimination, in legislation or in the conduct of administration, to the detriment of nationals of Poland and other persons of Polish origin and speech, in accordance with Article 104, paragraph 5, of the Treaty of Versailles. T h e Court said that the provision against discrimination in Article 104 of the Treaty of Versailles could be best understood in the light of the circumstances which led to the creation of the Free City of Danzig and the separation of it from the rest of Germany in order to provide for Poland a free access to the sea, contrary to the wishes of the German people. " In this respect, some apprehension might be entertained lest the Polish people in Danzig should be exposed to discriminatory measures on the part of the Free City for rio other reason than that they were P o l e s . " " T h e Court thought it natural to suppose that it was with a view to preventing any such discriminatory measures that the authors of the Treaty of Versailles thought it desirable to prescribe as one of the objects o f the Treaty between Poland and D a n z i g the terms of which were to be negotiated by the Principal Allied and Associated Powers, that a clause pro48 Quoted ibid., p. 16. The Convention was drafted by the Conference of Ambassadors and signed by Poland and the Free City.

«Ibid.,

pp. 27-28.

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hibiting such discriminatory measures should figure therein. T h e Court also observed that this was the sense understood by the Conference of Ambassadors as shown in the resolution adopted by that Conference on M a y 5th, 1920. 18 T h e Polish Government contended, continued the Court, that since the stipulation in question prohibited any discrimination to the detriment of Polish citizens and other persons of Polish origin or speech as compared with Danzig citizens of German origin, therefore this amounted to national treatment with only political rights (the rights to vote and to be elected) excepted. T o this contention the Court answered that " the text does not say between whom no discrimination is to be made. T h e Polish argument makes a very important addition, namely, a standard of comparison; this addition finds no support in the text." 49 In the Court's opinion the object of the prohibition was to prevent any unfavorable treatment, and not to grant a special régime of privileged treatment. In short, the contents of Article 104 ( 5 ) were of a purely negative character in that they were confined to a prohibition of any discrimination; " i t is for this r e a s o n " that the Court was unable to read into them the standard of comparison. T h e Court also said that D a n z i g was not a party to the Treaty of Versailles, that Article 104 of the Versailles Treaty was a mandate accepted by the Principal Allied and Associated Powers to negotiate a further treaty between Danzig and Poland, and that the Article was of value because it was inserted into the Paris Convention (Article 33, paragraph 1) to which Danzig was a party. A s f o r Article 33, paragraph 1, of the Convention of 48

Ibid., pp. 26-27.

** Ibid., p. 29. Sir Cecil Hurst pointed out in his separate opinion that the Polish contention had not been accurately stated by the Court, ibid., P- 5i-

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111

Paris, the Court said : " This text ndt being absolutely clear, it may be useful, in order to ascertain its precise meaning, to recall here somewhat in detail the various drafts which existed prior to the adoption of the text now in force." 80 With the aid of this preparatory work the Court was able to conclude that the second half of the paragraph was a repetition of the provision of Article 104 ( 5 ) of the Treaty of Versailles, and that the reason for embodying it in the Convention was to bind Danzig directly as a party ( for Danzig was not a party to the Treaty of Versailles.) The first half of Article 33, paragraph 1, it was held, was designed to place on Danzig the same burden and to the same extent as Poland was obliged to afford minorities in Polish territory the treatment stipulated in the treaty of minorities.51 Sir Cecil Hurst wrote a separate opinion.52 With regard to the interpretation of Article 33 of the Convention of Paris, he said, " the text becomes so clear that a reference to the ' travaux préparatoires ' of the Convention seems scarcely justifiable." 58 He said also, " but the history of the Article is interesting " 54 and on that account he proceeded to seek the aid of the " travaux préparatoires " to further elucidate the meaning of the Article.55 Both the majority of the Court and Sir Cecil Hurst referred to the preparatory work to help ascertain the meaning of Article 33, paragraph 1, of the Convention of Paris. The Court felt it necessary to do so, because the text was not " absolutely clear " ; Sir Cecil Hurst realized also the useful5

° Ibid., p. 33. Ibid., pp. 39-41. 52 Ibid., p. 50. 53 Ibid., p. 56. 54 Ibid., p. 57. 65 Ibid., p. 58 et seq. He emphasized, moreover, the changes in the wording of Article 33 as indicating the proper interpretation to be given it. 51

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ness of such evidence in elucidating the subject in this case, but he hesitated, 88 because he deemed that the justifiability o f such a step was questionable in the face of the clearness of the language. INTERPRETATION OF T H E S T A T U T E OF T H E M E M E L TERRITORY ( P R E L I M I N A R Y O B J E C T I O N )

In this case," decided by the Permanent Court of International Justice, on June 24th, 1932, the Court was burdened with the task of interpreting Article 17 of the Convention of May 8th, 1924, concerning Memel, between the Principal Allied Powers and Lithuania. T h e Article provided : 5 8 The High Contracting Parties declare that any Member of the Council of the League of Nations shall be entitled to draw the attention of the Council to any infraction of the provisions of the present Convention. In the event of any difference of opinion in regard to questions of law or of fact concerning these provisions between the Lithuanian Government and any of the Principal Allied Powers members of the Council of the League of Nations, such difference shall be regarded as a dispute of an international character under the terms of Article 14 of the Covenant of the League of Nations. The Lithuanian Government agrees that all disputes of this kind shall, if the other Party so requests, be referred to the Permanent Court of International Justice. Lithuania contended that the t w o paragraphs of the Article related to t w o distinct phases of one and the same procedure, and that, accordingly, all disputes before being referred to the Court " must be submitted to the Council f o r examination." A s this condition, according to Lithuania, had not 58 Ibid., p. 57, where he said, " the text of Article 33 is to me so clear that I should hesitate to refer to the ' travaux préparatoires,... ' "

« Pub. P. C. I. J. ( A / B ) , No. 47. »» Ibid., p. 8.

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been observed in the present case, the Court had no jurisdiction.58 The Court, however, said that the proceedings before the Council, contemplated by paragraph 1 of Article 17, were quite different from the judicial proceedings before the Court to which the second paragraph of the Article referred ; that if proceedings before the Council were to be a condition precedent to proceedings before the Court, " the intention " of the Contracting Parties to stipulate such a condition " must be clearly established " ; that there was nothing in the text of the Article to show such an " intention " ; that the " actual text " of the Article showed that the two proceedings related to different subjects,—the object of the procedure before the Council was the examination of an " infraction of the provisions of the Convention ", which presupposed an act already committed, whereas the procedure before the Court was concerned with " any difference of opinion in regard to questions of law or of fact ", which might arise without any infraction of the provisions ; and that this was sufficient to " prove that the two procedures are not necessarily connected with one another." 80 In support of its contention, the Lithuanian Government referred to the history of the Article in question.41 T o this the Court answered : 6 2 59

Ibid. «0 Ibid., p. 9. Ibid., p. 10. 62 Ibid. The French text of the Court's judgment, in this case, was declared authoritative. The corresponding French text read : " Quant aux considérations d'ordre historique, la cour doit avant tout rappeler que, selon sa jurisprudence constante, les travaux préparatoires ne sauraient être invoqués pour interpréter un texte qui est, en lui-même, suffisamment clair. Elle est d'ailleurs d'avis que l'historique de l'article 17 de la convention n'apporte ancun élément qui vienne à l'encontre de l'interprétation résultant des termes mêmes de cet article." The French text used "jurisprudence constante", while the English translation used "constantly held." 81

1 I 4

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As regards the arguments based on the history of the text, the Court must, first of all, point out that, as it has constantly held, the preparatory work cannot be adduced to interpret a text, which is, in itself, sufficiently clear. The Court is, moreover, of opinion that the history of Article 17 of the Convention provides no material which conflicts with the interpretation of the terms of the Article standing by themselves. It should be remembered, however, that in all previous instances where the Court made such pronouncements, the Court had invariably examined the preparatory work in question and found in every case that such work tended to strengthen rather than to weaken the Court's conclusions already drawn from the text or otherwise, and that in no instance had the Court refused to consider such work on the ground that it was contrary to a clear text. In this case, again, the Court examined the preparatory work in question in detail and found nothing therein which tended to contradict the Court's conclusions." INTERPRETATION OF T H E CONVENTION OF 1 9 1 9 CONCERNING E M P L O Y M E N T OF WOMEN DURING T H E NIGHT

Article 424 of the Treaty of Versailles provided that the first meeting of the International Labor Conference, the creation of which was provided for in Part X I I I of the same treaty, was to take place in October, 1919. According to an annex to Article 426 of the Versailles Treaty, the Conference was to meet at Washington, and its agenda was to include the employment of women during the night and also the extension and application of the international convention 83 Ibid., pp. 11-14. Cf. Baron Rolin-Jaequemyns' dissenting opinion, who relied on the views expressed on the same Article, two years after the signature of the 1924 Convention, by a committee of jurists constituted by the League in 1926. These views seemed to be the interpretation of the Article given by the Committee of Jurists. They did not decisively prove the design of the Parties.

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adopted at Berne in 1906 on the prohibition o f night w o r k f o r women employed in industry.

T h e Conference met as

scheduled and adopted a Convention. In the instant case

44

the Permanent C o u r t o f International

Justice was requested to deliver an advisory opinion on the question whether Article 3 of the Convention o f W a s h i n g t o n , adopted in 1 9 1 9 by the International L a b o r Conference meant to be applicable to women w h o held positions of supervision or management and w h o were not ordinarily engaged in manual labor.

T h e Article p r o v i d e d : 4 5

Women without distinction of age shall not be employed during the night in any public or private industrial undertaking, or in any branch thereof, other than an undertaking in which only members of the same family are employed. T h e Court said that the w o r d i n g o f Article 3, " considered by itself, gave rise to no difficulty " ; that it w a s " general in its terms and free f r o m ambiguity or obscurity " ; that it prohibited the employment during the night in industrial establishments of women without distinction o f a g e ; and that, " taken by itself, it necessarily applies to the categories o f w o m e n contemplated by the question submitted to the C o u r t . " T h e C o u r t said further that, if Article 3 w a s to be interpreted in such a w a y as not to apply to w o m e n of the said categories, it w a s " necessary to find some valid g r o u n d f o r interpreting the provision otherwise than in accordance w i t h the natural sense of the w o r d s . " It declared that the terms of the Article were " in themselves clear and free f r o m ambiguity " and " in no respect inconsistent either with the title, or with the Preamble, or with any other provisions of the Convention."

In r e f e r r i n g

6 4 Advisory opinion delivered on M a y 9th, 1932, Pub. P . C. I. J. ( A / B ) , No. 50. 85

Cited ibid.,

p. 9.

I x6

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to Part X I I I of the Treaty of Versailles under which the International Labor Organization was created, it said: 6 5 It is certainly true that the amelioration of the lot of the manual worker was the main preoccupation of the authors of Part X I I I of the Treaty of Versailles of 1919; but the Court is not disposed to regard the sphere of activity of the International Labor Organization as circumscribed so closely, in respect of the persons with which it was to concern itself, as to raise any presumption that a labor convention must be interpreted as being restricted in its operation to manual workers, unless a contrary intention appears. The Court declared also that it was " so struck with the confident opinions expressed by several delegates with expert knowledge of the subject " at Geneva during the discussions in 1930 and 1 9 3 1 on a proposal to revise the Washington Convention, to the effect that the Convention applied to women manual workers only, that it was led to examine the preparatory work of the Convention " in order to see whether or not it confirmed the opinions expressed at Geneva." But it said: " In doing so, the Court does not intend to derogate in any way from the rule which it has laid down on previous occasions that there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself. Perhaps it is not necessary to recall again that such pronouncements had been made by the Court in cases in none of which had preparatory work appeared to challenge the conclusions drawn from the text. In this case, the Court examined the preparatory work in detail, and concluded that " the impression derived from a study of the preparatory work " was that, " although at first the intention was that 68

Ibid., p. 13.

" Ibid., p. 17.

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the Conference should not deviate from the stipulations of the Berne Convention " which dealt with women manual workers only and which the Washington Convention was to supersede, " this intention had receded into background " by the time when the D r a f t Convention was adopted later on. It continued: 68 The preparatory work thus confirms the conclusion reached on a study of the text of the Convention that there is no good reason for interpreting Article 3 otherwise than in accordance with the natural meaning of the words. Thus, the Court was, again, not compelled to face a situation where preparatory work, strongly pointing to the actual design of the Contracting Parties, might force it to accept the evidence as decisive, despite a seemingly clear text tending in a different direction. The reference made by the Court to such work after the text had been declared clear, however, seemed to indicate that the freedom of the Court in seeking evidence was not to be restricted to a mere analysis of the text, as pronounced in frequent dicta, even though the text should seem clear. In his dissenting opinion, Judge Anzilotti said: 49 In my view the question is not whether it is possible to find a valid ground for placing upon Article 3 of the Convention concerning the employment of women during the night an interpretation other than that which is consistent with the natural meaning of its terms; notwithstanding the fact that the Article is perfectly clear. If Article 3, according to the natural meaning of its terms, were really perfectly clear, it would be hardly admissible to endeavor to find an interpretation other than that which flows from the natural meaning of its terms. 68

Ibid., p. 19. •9 Ibid., p. 22.

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But I do not see how it is possible to say that an Article of a convention is clear until the subject and aim of the convention have been ascertained, for the article only assumes its true import in this convention and in relation thereto. Only when it is known what the Parties intended to do and the aim they had in view is it possible to say either that the natural meaning of the terms used m a particular article corresponds with the real intention of the Parties, or that the natural meaning of the terms used falls short of or goes further than such intention. In the first alternative, it may rightly be said that the text is clear and that it is impossible, on the pretext of interpretation, to endow it with an import other than that which is consistent with the natural meaning of the words. In the other alternative, since the words have no value save as an expression of the intention of the Parties, it will be found that the words have been used in a wider sense than normally attaches to them (broad interpretation) or that they have been used in a narrower sense than normally attaches to them (narrower interpretation). Thus, it seemed to Judge Anzilotti, that a text could not be considered clear all by itself, without reference to the objects to which it was to be applied. To say that a text was clear or otherwise, in his opinion, presupposed an understanding of pertinent circumstances external to the text. In order to ascertain the aim and subject of the Convention, he studied Part X I I I of the Treaty of Versailles. He said that the task allotted by that Part to the International Labor Organization was " the regulation of conditions of manual labor "; that it was " only natural to regard that any convention concluded under this Part is to be regarded as relating to manual labor and not to labor in general " ; that " another and more general intention is conceivable " but " must be proved " and " cannot be presumed " ; and that the Article applied, in his opinion, exclusively to the women manual workers. He continued: T0 ' Ibid., pp. 27-28.

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If however any doubt were possible, it would be necessary to refer to the preparatory work, which, in such case, would be adduced not to extend or limit the scope of the text clear in itself, but to verify the existence of an intention not necessarily emerging from the text but likewise not necessarily excluded from that text. Now the preparatory work shows most convincingly that the intention of the Washington Conference was to maintain—whilst for technical reasons adopting a new convention—the main lines of the Berne Convention, save for a certain number of clearly indicated modifications none of which relates to the question before us. And since the Berne Convention, according both to its actual terms and to the universally adopted interpretation thereof, refers only to women manual workers, it follows that the intention of the Conference was to regulate the night employment of women manual workers. Thus the preparatory work would, if need be, confirm the interpretation which, in my view, naturally flows from the text of the Convention. It should be noted, first of all, that, in this case, there was no conflict in the Court's opinion between the preparatory work and conclusions drawn from the t e x t Neither the majority nor the dissenting judge deemed that such an issue existed; on the contrary, they both deduced from the preparatory work conclusions confirmatory of their particular interpretations of the text. The difference in views was due primarily to the methods of approach. The majority deemed the terms of the text free from ambiguity, and was therefore unwilling to restrict the operations of the provision when there was, in its opinion, no sufficient evidence to establish such a design. Judge Anzilotti challenged the assertion that a text could be considered to be clear by itself without reference to the subject and aim of the Convention in question. The Article read in the light of external evidence, in his opinion, led to a narrow rather than broad signification.

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In the experiences of the Permanent Court of International Justice in treaty interpretation, it has had frequent occasions to refer to arguments advanced by litigating parties for or against the use of preparatory work as evidence. In none of the cases did the Court find any real conflict between the preparatory work and the conclusions deduced by the Court from the text or otherwise, because such work in all cases furnished evidence tending to strengthen the conclusions of the Court already arrived at from an analysis of the text. Thus, there being no conflict, the Court declared it to be unnecessary to resort to such work " for the purpose of changing the plain meaning " of that text which was deemed " sufficiently clear in itself." Nevertheless, the Court has not hesitated to discuss such work with a view to dispelling and answering such doubts as have been raised by either of the litigating parties by reference thereto. Apart from dicta, therefore, the Court has not yet made any decision on this important question,—the admissibility of preparatory work to contradict deductions drawn from the text of a treaty or otherwise.71 ROUMANIAN

MINISTER OF WAR V. TURKISH

GOVERNMENT

In the case of the Roumanian Minister of War v. Turkish Government,72 decided on April 26, 1928, by the Roumaniann

" The Court has declared that ' there is no need to have regard to preparatory work if a text of a convention is sufficiently clear in itself and that such work ' should not be used for the purpose of clianging the plain meaning of a text which is sufficiently clear in itself These pronouncements were made in cases when the Court had the candor to observe that the preparatory work furnished nothing calculated to overrule the construction derived from the ' actual terms '. Nevertheless, the words of the Court must be taken as authoritative tokens of a deference for the form of a text which nothing in its judicial experience has thus far served to weaken." Hyde, " The Interpretation of Treaties by the Permanent Court of International Justice", 24 Am. J. Int. L. 1, 18-19. " 7 T. A. M. 993-

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Turkish Mixed Arbitral Tribunal created under the Treaty of Lausanne of July 24th, 1923, the question of admissibility of preparatory work was discussed by the Tribunal at great length. Article 65 of the Treaty of Lausanne provided f o r restitution of properties belonging to Roumanians confiscated by the Turkish Government during the war. In contending that the Contracting Parties designed to cover by this Article only certain categories of goods which did not include those claimed by Roumania in the present case, the Turkish Government adduced the preparatory work of the Lausanne Conference relating to Article 65 of the Treaty. T o this contention the Tribunal replied : 7 8 Afin d'étayer sa position, le défendeur invoque les procès-verbaux des séances tenues à la Conference de Lausanne. A ce propos, il échet de reveler, en voie principielle, que le texte de la loi est le guide principal et suprême de l'interprète. . . . Ce n'est qu'au cas où le texte est obscur, douteux ou en contradiction avec les principes par ailleurs admis par le législateur que le juge doat, hors le texte, rechercher le véritable sens de la loi. . . . Il est vrai que parmi les moyens dont le juge dispose pour ces recherches figure sans doute le recours aux travaux préparatoires qui peuvent et doivent, en cas de besoin, servir à interprétation de la loi qui est dérivée. Mais il est aussi reconnu que le valeur des arguments tirés de ces travaux est très limités et qu'il ne faut les utilizer qu'avec une extrême prudence pour ne pas tomber dans l'erreur de modifier, par des raisons qui y sont empruntées, un texte clair et précis par lui même. Mais une convention synallagmatique et que par conséquent les travaux préparatoires, pour être utilement mis à profit pour l'interprétation du texte, doivent établir l'intention commune des parties contractantes de donner à une certaine clause du traité une signification et une portée qui ne découlent pas directment de ses termes. Pour que l'on puisse s'en écarter, il faut qu'il soit nettement et incontestablement prouvé que les parties con73

Ibid., p. 995.

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tractantes ont voulu dire autre chose que ce qu'elles ont dit. Mais dans le règle il est à présumer qu'elles aient su fidelement traduire leur pensée par les termes employés. T h e Tribunal admitted that in ascertaining the common design of the contracting parties to a treaty, preparatory work might be used as evidence to establish a sense not normally contained in the terms, and that such work might be used to overrule the sense deduced from the ordinary meaning of the terms when it was plainly and incontestably proven that the Parties had designed " to say something other than what they said." But the Tribunal maintained that, normally, it should be presumed that the parties had accurately expressed their thoughts by the terms they had employed. The Tribunal then proceeded to examine the preparatory work in detail and found nothing which might cause it to reach a conclusion other than that which the terms of the text would lead to. It said : 7 4 . . . le Tribunal, n'a pas pu, des procès-verbal en question, tirer des éléments de nature à combattre sérieusement la conviction ci-haut indiquée et résultant des termes. . . . Dans ces conditions, l'on ne saurait se baser sur les travaux préparatoires pour donner au texte de ces articles, dont le sens est clair et raisonnable, une portée autre que celle qu'ils ont par eux-mêmes. Thus, the Tribunal held that there was no conflict between the preparatory work in question and the terms of the text, and that therefore Article 65 should be construed according to the ordinary meaning of its terms. " Ibid., p. 996.

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WEITZEN HOFFER V.

WORK

GERMANY

In the case of Weitzenhoffer v. Germany " decided on January 18, 1926, by the Roumanian-German Mixed Arbitral Tribunal created under the Treaty of Versailles, Article 297 (e) of the Peace Treaty was under interpretation. Paragraph (e) of the Article provided that " the nationals of the Allied and Associated Powers shall be entitled to compensation in respect of damage or injury inflicted upon their property, rights or interests, including any company or association in which they are inter«sted, in German territory as it existed on August 1 , 1 9 1 4 ", by acts of German authorities, etc. The plaintiff contended that the Article was designed by the Contracting Parties to cover damages inflicted upon such property etc. in German territory as well as in territories occupied by Germany during the War, provided that such damages were caused by acts of German authorities. In support of this contention the plaintiff referred to drafts presented by Lord Sumner and M. Klotz during the Peace Conference, which did not make the distinction between German territory and territories occupied by Germany. The Tribunal said : 7 8 Les " travaux préparatoires " invoqués sont de simples projects. Leur contenu ne peut avoir une portée décisive, le Traité ayant adopté un règlement tout autre, en traitant séparément les " réparations " (partie V I I I ) et les clauses économiques (partie X ) . The Tribunal reviewed the various relevant articles Part X and concluded that the Article was not designed cover damages inflicted upon property etc. belonging nationals of the Allied and Associated Powers by acts

in to to of

" 5 T . A. M. 935. 78 Ibid., p. 941. Cf. Differences as to tht Treaty of Ghent, decided by the Emperor of Russia, 1 Moore, Arbitrations, 359.

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German authorities in territories occupied by Germany during the War, because they were specifically dealt with in Part V I I I (dealing with reparations). In reaching its conclusions, the Tribunal chiefly relied upon internal evidence. The preparatory work adduced by Roumania was characterized as mere drafts which did not decisively prove, according to the Tribunal, the attributed design of the Contracting Parties.77 " Cf. Ryntenans and Co. v. German State, decided by the GermanB e l g i a n M i x e d Arbitral Tribunal on February n , 1922, 1 T . A . M . 878, w h e r e the Tribunal was interpreting the phrase " exceptional w a r measures " applied by Germany to " enemy property " during the war, as used in A r t i c l e 297 ( e ) of the T r e a t y of Versailles and in A n n e x 3 f o l l o w i n g the Article. Germany contended that the phrase in question meant differential w a r measures applied to enemy property as such but not general w a r -measures which w e r e applied to property of German nationals and neutrals as well. In support of this contention Germany cited, among other things, the observations made by the G e r m a n Delegation to the P e a c e Conference of Versailles on the Article, in which Germany used the word " Ausnahmegesetze " which technically, according to Germany, meant differential measures but not exceptional measures. T h i s view, Germany contended, was not contested by the Allies in their reply. A f t e r h a v i n g reached its conclusion f r o m various considerations, the Tribunal answered the German contention by saying : " A supposer même que le terme ' Ausnahmegesetze ' ait toujours le sens étroit que lui attribue le défendeur, cette note allemande ne concerne aucunement la question de la differentialité, qu'elle a pour unique objet le traitement des biens allemandes en pays alliés, principalement aiprès la guerre, et qu'elle emploie le mot ' A u s n a h m e g e s e t z e ' sans le définir, dans des phrase où, pour un lecteur étranger ignorant du sens précis des termes techniques allemandes tantôt le caractère différentiel des lois est évidement supposé, et où tantôt il ne l'est pas ( p a r exemple aux m o t s : ' d i e wâhrend des K r i e g e s auf Grund von Ausnahmegesetzen vorgenommon E i n g r i f f e in das Privateigentum). " Les puissances alliés n'avaient donc pas à contester dans leur réponse une manière de voir qui n'était pas exprimée, et se sont naturellement bornées a répondre a u x questions discutées par l'Allemagne." Ibid., p. 886. Cf.

also Dame H. de Creutur,

Vve. Dutreil

v. German

State,

decided

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WORK

T H E I S L A N D OF TIMOR CASE

This was a dispute between the Netherlands and Portugal over the boundary of a part of their respective possessions in the Island of Timor, submitted to the Permanent Court of Arbitration of the Hague for arbitration/ 8 The Court was confronted, among other things, with the interpretation of by the Franco-German Mixed Arbitral Tribunal in the same year, ibid., p. 256, where the same phrase " exceptional war measures " was decided in a similar manner. Cf. also Société Vinicole de Champagne v. W. de Mumm, decided on March 3, 1921, by the Franco-German Mixed Arbitral Tribunal, I T . A . M. 22; Schmid v. Chemische tVerke Fiirstenwalde, decided on July 30, 1921, by the same Tribunal; Karl Toth v. Yugoslav State, decided on April 2, 1927, by the Hungarian-Yugoslave Mixed Arbitral Tribunal, 7 T . A . M. 850; Schreiber and Co. v. Czechoslovak State, decided on July 29, 1927, by the Hungarian-Czechoslovak Mixed Arbitral Tribunal, ibid., p. 897 ; Abbas Hilmi Pasha v. Great Britain, decided on June 29, 1927, by the Anglo-Turkish Mixed Arbitral Tribunal, ibid., p. 909; Ekrem Bey v. Italy, decided on November 5, 1927, by the Turkish-Italian Mixed Arbitral Tribunal, ibid., p. 965 ; Banque d'Orient v. Greece, decided on February 9, 1928, by the Greco-Turkish Mixed Arbitral Tribunal, ibid., p. 967 ; Polyxene Plessa v. Turkish Government, decided on February 9, 1928, by the same Tribunal, 8 T . A . M. 224; and G. Kauroklis v. Turkey, decided on June 14, 1928, by the same Tribunal, ibid., p. 398. In all these cases preparatory work was used as evidence. Cf. the views of Mr. Nielsen in his dissenting opinion in Blair v. Mexico, decided on October 18, 1928, by the General Gaims Commission between the United States and Mexico created under the Convention of September 8, 1923. (G. C. C. [U. S. & Mex.], Doc. No. 3193). H e said that the words " a c t s incident to the recent revolution" used in Article I of the Convention were " meagre and general language which must frequently require interpretation"; that " i t is permissible to consider negotiations leading to the conclusions of a treaty " ; that " this principle is one that may sometimes be given important application"; but that in the present case " no information has been given to the Commission whether or not such material is available—perhaps there is none." Opinions of Commissioners, September 26, 1928 to May 17, IÇ2Ç (Washington, D. C., 1929), pp. 115-116. See also Gorham v. Mexico (G. C. C. [U. S. & Mex.], Doc. No. 258), Opinions of Commissioners, October, 1930 to July, 1931, p. 132. 78

9 Am. J. Int. L. 240.

See the history of the Island, ibid., pp. 240-242.

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the following passage as provided in Article III of the Convention of the Hague, signed on November 10, 1904: T * From this point (the confluence of the Noel Bilomi with the Oe-sunan) the boundary follows the thalweg of the Oe-Sunan, runs as much as possible across Nipani and Kelali (Keli), strikes the source of the Noel Meto and follows that river to its mouth. This line was marked on the official map annexed to the Convention as the line A-C. Disputes soon arose as it was found that there were two affluents coming from the north to the Bilomi River and none was called Oe-Sunan. The River Oe-Sunan, according to the Portuguese, was not an affluent of the Bilomi, but flowed farther to the east and had its source " hard by the Bilomi." The Portuguese contended that the design of the Parties was to follow the Oe-Sunan River, and that the line A-C was only " a drawing designed to fix ideas, and a vague and simple indication of what ought to be settled later." 80 The Tribunal deemed it to be important to reproduce the discussions during the negotiations that preceded the Convention in detail, because they threw " positive light " on the " real and mutual intention of the Parties." 81 The Court found that during the negotiations the Dutch delegates threatened, if their proposed line A - C (which divided the disputed Ambeno territory between the two nations) was rejected by the Portuguese, to refer the whole matter to arbitration and to raise the question that the whole Ambeno territory might be claimed then by the Dutch under an earlier Convention; that the Portuguese, after having "seriously examined " the Dutch proposal, resolved to accept it; and that the Portuguese delegates themselves proclaimed that the 79

Ibid., p. 242.

80

Ibid., p. 245.

81

Ibid., p. 253.

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line represented " a considerable reduction " of the frontiers of the territory in question. It was therefore deemed certain that this line A-C should be considered, " in the intention of the Parties, as a concession" made by Portugal to the Netherlands. The Court s a i d : " In a word, through the negotiations she [Portugal] found compensations deemed sufficient by her for abandoning the line B-D and the immediate line A-B that she claimed. She accepted the line A-C claimed by the Netherlands sine qua non. In the light of these circumstances, the Court decided that the line A-C was the line agreed upon by the Parties. The next question was how to draw the line from point A (the point where a previous commission of experts stopped their work) to the source of the Noel Meto then following its thalweg to its embouchure—point C. The Court said again that the " real and harmonious intention of the Parties " should control." 88 It found that the text of the Convention reproduced word for word the text proposed by the Dutch commissioners at the session of Poekang; 84 this seemed to suggest that the Portuguese proposal was ignored and the Dutch proposal was adopted word by word by the Parties who signed the Agreement of 1904. This consideration was deemed sufficient to establish " by evidence the intention of the Contracting Parties " to have adopted the Dutch survey which formed a part of the Dutch proposal, and to have thrown aside the Portuguese survey.83 Having thus reached its conclusion, the Court considered the name of the river immaterial; the Parties might by mistake have designated that river Oe-Sunan, but the river which they actually agreed 82

Ibid.

83

Ibid., p. 255.

84

Ibid., p. 256.

85

Ibid.

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upon was more important than a name they assigned to it by mistake." THE CHILEAN-PERUVIAN

ACCOUNTS

In this case,87 M r . C. A . Logan, the arbitrator, was confronted with the question of interpreting Article II of the Treaty of Alliance, Offensive and Defensive, between Chile and Peru, signed on Docember 5th, 1865. 88 The Article provided: For the present and by the present Treaty, the Republics of Chile and Peru oblige themselves to unite such naval forces as they have or may in future have disposable, in order to oppose with them such Spanish maritime forces as are to be or may be found on the waters of the Pacific . . . committing hostilities against Chile or Peru. T h e Parties agreed that the Government in whose waters the combined naval forces appeared to be was to defray all kinds of expenses. 89 Differences later arose as to the interpretation of the Article. T h e arbitrator declared that " the simple language of the t e x t " would seem to settle the whole question." 0 He said that the design of the t w o Republics was to unite disposable vessels of the two countries to form an effective fleet to oppose the Spanish maritime forces. A f t e r having drawn his conclusion from the text, he also See also the St. Croix River Case, Moore, International Adjudications, op. cit., vols, i and ii; the Manica Arbitration Case, 5 Moore, Arbitrations, 4985; the Alaskan Boundary Case, Proceedings of the Alaskan Boundary Tribuanl, S. Doc., No. 162, 58th Cong., 2nd Sess., especially pp. 48-49; and also the Reserved Fisheries Arbitrations, 1 Moore, Arbitrations, 426, 449. In all these cases prior negotiations were extensively used to aid treaty interpretation. 84

87

2 Moore, Arbitrations,

88

Cited ibid., p. 2086.

2085.

89

Article I V , cited ibid., p. 2087.

80

Ibid., p. 2093.

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129

referred to prior negotiations and contemporary declarations, in regard to which he said: ®L Though possessing only a corroboratory value, but tending to show the intention of the Parties to the Treaty, it may be said, in general terms, that every document of the government officials of the time, presented to the arbiter, bears out the construction of a single combined fleet. T h e consideration of prior negotiations in this case after the arbitrator said that he could deduce the sense of the Article from the simple language o f the text is significant. In the opinion of the arbitrator, prior negotiations, although possessing only a corroboratory value in themselves, tended to show the actual design of the contracting parties, which it was the duty of the interpreter to ascertain. T H E ELBE CASE

T h i s case 92 dealt with the cessions by Germany to Czechoslovakia of certain navigation material on the River Elbe as stipulated in Article 339 " of the Treaty of Versailles. The arbitrator, Mr. Walker D. Hines, was confronted with the question whether the provision that Germany " shall cede to the Allied and Associated Powers concerned " certain property pertaining to navigation on certain river systems specified in Article 331 of the same Treaty® 4 embraced Czechoslovakia in regard to the River Elbe. The arbitrator was of the opinion that Article 339 in its " literal m e a n i n g " »embraced Czecho-Slovakia in respect of the Elbe, because Czecho-Slovakia " by reason of its location " upon the Elbe 81 Ibid., p. 2095. Cf. the arbitrator's opinion in regard to the date from which the Treaty became operative, ibid., pp. 2091-2092. 82

18 A m . J. Int. L. 186.

88

Quoted ibid., pp. 187-188.

91

Under this Article the Elbe was declared to be international.

130

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was a power " directly concerned " in the navigation of that stream. This " concern " of Czecho-Slovakia in the navigation of the Elbe was " further recognized according to 83 the arbitrator, by Article 363 of the Treaty of Versailles, which gave Czecho-Slovakia a free zone for ninety-nine years in the Port of Hamburg at the Mouth of the E l b e . " The arbitrator found nothing in the history of the Treaty provisions to place any limitations in this respect upon the literal meaning of Article 339. It appeared to have been the " underlying purpose " o f the Treaty to provide for the cession of navigation material to the Allied and Associated Powers newly created or receiving enlarged territory as a result of the peace settlement." He also said: 9 8 While incidents connected with the drafting of Article 339 would not in themselves control the construction of the Article, it may be mentioned that the German delegation requested the arbitrator to ascertain the facts relative to the drafting of the provision. The Arbitrator has done so, and finds that originally a separate article was contemplated providing for cessions by Germany to Czecho-Slovakia, but it then seems to have been decided that in the interest of brevity an article expressed in the general terms of Article 339 would cover not only the Elbe but also the other rivers mentioned in Article 331. In the light of all these considerations, the arbitrator concluded that in respect of the Elbe, Czecho-Slovakia came within the scope and purpose of Article 339, and was entitled 85

Cited ibid., p. 187. • • A free zone for direct transit of goods coming from or going to that State. "Ibid. 98 Ibid. Cf. the attitude shown to such evidence by the General Gaims Commission between the U. S. and Mexico in the case of the Illinois Central Railway Company v. the United Mexican States, G. C. C. (U. S. & Mex.), Dock. No. 432.

ADMISSIBILITY

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to cessions thereunder, in accordance with its legitimate needs. There was no conflict between the preparatory work and other considerations in this case. It was in these circumstances that the arbitrator felt that " incidents" which happened during the preparatory work would not " in themselves " " control" the interpretation of the Article. He, however, admitted and considered such evidence. K I N K E A D V. T H E U N I T E D S T A T E S

In this case 89 the Supreme Court of the United States was confronted with the task of interpreting Article V I of the Treaty of March 30th, 1867, between His Majesty, the Emperor of Russia and the United States. 100 The Article provided: The cession of territory (Alaska and adjacent islands) . . . is hereby declared to be free and unencumbered by any reservation, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders. When the Article was applied to a building erected in 1845 by the Russian-American Company, at their own expense, and used from that time to the date of the Treaty by said Company as a warehouse for the storage of furs and other property, and for trading purposes, the question arose whether this building should be considered as belonging to an associated company or merely as private individual property. The Court deemed that the issue depended upon the construction to be given to the Treaty as well as the correspondence and protocol connected therewith. 101 • B 150 U . S. 483. 100

Cited ihid., p. 486.

1®1 Ibid., p. 485-

1^2

TREATY

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T h e Court referred to the correspondence between Secretary Seward and the Russian Minister as explanatory to Article V I . In Secretary Seward's letter on March 23, 1867, he said: 1 0 2 I must insist upon that clause in the sixth article of the draft which declares the cession to be free and unencumbered from any reservation etc., and must regard it as an ultimatum. With the President's approval, however, I will add two hundred thousand dollars to the consideration money on that account. T o this letter the Russian Minister answered that he was " authorized to accede literally to this request on the condition indicated." 103 T h e Court also took notice of the fact that the RussianAmerican Company had the privilege of making use of public lands and erecting buildings thereupon, but had no right of becoming the owner of such lands, except the privilege of conveying parcels of it in fee simple to its employés. It said that the extrinsic evidence in this case far from showing an " intention " on the part of the Russian Government that this building should not pass under the Treaty, evinced a determination on the part of both Governments that it should so pass. 104 T h e correspondence between the Secretary of State and the Russian Minister with reference to the Article, according to the Court, contemplated that there •were " reservations " and " possessions " owned by " associated companies " which were to pass under the Treaty, and the sum of two hundred thousand dollars was added to the consideration money to cover the cession of such properties. Besides, more explicit words than those of the Article, in the Court's opinion, could scarcely be chosen to express the 102

Ibid., p. 486.

103

Ibid.

104

Ibid., pp. 491-492.

ADMISSIBILITY

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determination of both Governments to distinguish such " reservations " of " associated companies " from individual property. The Court in this case seemed to rely principally on prior negotiations in ascertaining the sense of the Article, in spite of the fact the same conclusion might also have been deduced from the explicit terms used. TERRACE V. THOMPSON

In this case, 105 in deciding whether the first Article of the Treaty of 1911 between the United States and Japan included privileges to lease land for agricultural purposes, 104 the Supreme Court of the United States first reviewed the Article which read as follows : The citizens and subjects of each of the High Contracting Parties shall have the liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established. The Court said: 1 0 7 W e think that the Treaty not only contains no provision giving Japanese the right to own or lease land for agricultural purposes, but when viewed in the light of the negotiations leading up to its consummation, the language shows that the High Contracting Parties respectively intended to withhold a treaty grant of thai right to the citizens and subjects of either in the territories of the other. 263 U. S. 197. 188

3 U. S. Treaties 2712.

107 263 u. S. 197, 223.

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The right to " carry on trade " or to " own or lease and occupy houses, manufactories, warehouses and shops " or to " lease land for residential and commercial purposes " or to " do anything incident to or necessary for trade according to the Court, could not be said to include the right to own or lease or to have any title to or interest in land for agricultural purposes. A careful reading of the Treaty, in the opinion of the Court, sufficed to lead to the conclusion that the enumeration of rights to own or lease for other specified purposes " impliedly " negatived the right to own or lease land for agricultural purposes. " But if the language left the meaning of its provisions doubtful or obscure, the circumstances of the making of the Treaty would resolve all [such] doubts." The Court then referred to the letter sent by Secretary Bryan to Viscount Chinda,108 on July 16, 1913, which showed that, in accordance with the desire of Japan, the Parties negotiating the Treaty mutually agreed not to confer on the citizens or subjects of each other the right to own land. And a further study of the diplomatic negotiations revealed the fact that the phrase " to lease land for residential and commercial purposes " was substituted for a phrase of broader significance in an earlier draft, which might include agricultural purposes. These seemed to indicate the endeavor on the part of the Contracting Parties to limit the use of land for residential and commercial purposes only. Under these circumstances the Court was unable to construe the Article as embracing the right to own or lease land by Japanese subjects in the United States for agricultural purposes.109 108

Ibid., pp. 223-224.

10» See also Webb v. O'Brien, 263 U. S. 3>3. 323; Frick v. Webb, 263 U. S. 326, 333-

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COOK V. UNITED STATES

This was a case 1 1 0 decided by the Supreme Court of the United States o n January 23, 1933, in which the interpretation of the Treaty with Great Britain signed on January 23, 1924, was involved. Article I of the Treaty p r o v i d e d : 1 1 1 The High Contracting Parties declare that intention to uphold the principle that 3 marine from the coast line outwards and measured mark constitute the proper limits of territorial

it is their firm miles extending from low-water waters.

Article II provided: His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under the British flag outside the limits of territorial waters by the authorities of the United States in order that enquiries may be addressed to those on board and an examination be made of the ship's papers for the purpose of ascertaining whether the vessel or those on board aré endeavoring to import or have imported alcoholic beverages into the United States in violation of the laws there in force. . . . If there is reasonable cause for belief that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States, the vessel may be seized and taken into a port of the United States for adjudication in accordance with such laws. . . . The rights conferred by this Article shall not be exercised at a greater distance from the coast of the United States than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense. T h e issue was whether the provision limiting the exercise of these rights to a distance, f r o m the coast of the United States, not greater " than can be traversed in one hour " by the vessel suspected of committing the offense, was designed by the Contracting Parties to modify, as far as British 110

S3 Sup. Ct. 305.

111

Quoted ibid., p. 308.

See also supra, p.

.

I36

TREATY

INTERPRETATION

BY

TRIBUNALS

vessels were concerned, the existing statutory law of the United States authorizing examination and seizure of such vessels within 12 miles of the coast of the United States. Cook contended that the vessel involved was of British registry and of a speed not exceeding 10 miles an hour; that the vessel was boarded and seized at a distance oi 11 l/t miles from the coast by the authorities of the United States ; and that, therefore, the boarding and seizure of the vessel were contrary to the provision of Article II which specifically limited the exercise of such rights to a distance not greater " than can be traversed in one hour " by the vessel. The United States on the other hand, contended that the Treaty settled the validity of the seizure only for those cases where it was made within the limits described in the Treaty, and that it did not prohibit the enforcement of the laws of the United States beyond such limits. The Court said that " in construing the Treaty its history should be consulted " ; that the history revealed that serious differences had arisen between the two Governments on the subject of search and seizure, beyond the territorial waters of the United States, of British vessels suspected of smuggling liquors ; that, for the purpose of resolving these difficultés, the Parties had determined to deal completely with the subject in a treaty; that the United States had twice proposed to set up the " twelve-mile limit " within which such rights were to be exercised ; that the British Government had, on both occasions, definitely rejected such proposal; that, instead, the British had submitted a counter-proposal which had, with a few purely verbal changes, been accepted by the United States and formed the present Treaty; and that in view of these circumstances it was difficult to contend that the Parties had not agreed to limit the exercise of such rights to the limits described in the Treaty. 112 112

Ibid., pp. 308-311.

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137

The Court also resorted to the Preamble to the Treaty, which said that the Parties, " being desirous of avoiding any difficulties which might arise between them in connection with the laws in force in the United States on the subject of alcoholic beverages ", had agreed to these Articles. This also showed that the Parties designed to deal completely with the subject in the Treaty."* Thus both from the history and from the language of the Treaty, the Court concluded that the Treaty did modify the existing law and limit the exercise of the rights of search and seizure, in so far as British vessels suspected of smuggling liquors were concerned, to a distance, from the coast of the United States, not greater " than can be traversed in one hour " by the vessel. In this case, the court studied the entire history of the negotiations with a view to finding out the actual design of the Contracting Parties. The negotiations furnished decisive proof as to what the Parties had specifically agreed upon. The value of prior negotiations as evidence probative of the actual design of the Parties was fully illustrated in the case. A study of the cases decided by the Supreme Court of the United States 114 shows the readiness of that Court to resort 118

Cf. Ford v. United States, 273 U. S. 593; supra, pp. 89-91. See also U. S. v. Texas, 162 U. S. 1 ; Wright v. Henkel, 190 U. S . 40; Jordan v. Tashiro, 278 U. S. 123; Nielsen v. Johnson, 279 U. S. 47; and Todok v. Union State Bank of Harvard, 281 U. S. 449. Cf. Little v. Watson, 32 Maine 214, decided in 1852, where the Supreme Court of Maine was interpreting Article I V of the Treaty of Washington of 1842 between the United States and Great Britain. The Article provided: " A l l grants of land heretofore made by either Party, within the limits of the territory, which by this Treaty, falls within the dominions, of the other Party, shall be held valid, ratified and confirmed to the persons in possession under such grants to the same extent, as if such territory had, by this Treaty, fallen within the dominion of the Party, by whom such grants were made."

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to the evidence of prior negotiations whenever there is a The disputed land involved in this case bordered upon the conventional line of boundary between the United States and the Province of New Brunswick established by the Treaty of Washington, but it bordered on that part of the line which had not been disputed by the Contracting Parties and concerning which the conventional line only confirmed previous agreements. The plaintiff contended that the land which bordered on this part of the line did not fall within the territory of the United States by the Treaty of Washington but by an earlier treaty; and that Article IV, which referred to the disputed territory alone, could not be applied in the present case. In support of this contention, the plaintiff invoked the aid of prior negotiations which showed that this part of the territory had not been disputed. The Court said: "Upon a literal construction of the language of the Treaty the tenant [defendant] presents a title within its provisions and protected by them. The literal is the correct construction of such an instrument, when the language is clear, precise, not inconsistent with other provisions, and not leading to absurd conclusions, Vattel, lib. II, c. 17. And in such case no extraneous means for an interpretation of the Treaty should be sought." The Court said also that the Preamble of the Treaty stated that certain portions of the line of boundary between the two States as described in the second Article of the Treaty of Peace, 1783, had not yet been ascertained and determined, notwithstanding the repeated attempts heretofore made for that purpose; that it was declared in the same Preamble that it was for the interest of both Parties to avoid further discussion of their respective rights arising in that respect under the Treaty of Peace and to agree on a conventional line of boundary " such as may be convenient to both Parties with such equivalents and compensations, as are deemed just and reasonable " ; and that the whole conventional line was, then, traced in the Preamble, including both the portion which confirmed previous agreements and the portion newly readjusted, without distinction. These, in the Court's opinion, showed that the Parties had design to apply the provisions of the Treaty to both portions of the line. It declared further: " When the language used in a treaty clearly declares a fact, or grants, defines, or confirms a right, it must be effectual even if found to be inconsistent with the purpose disclosed by the correspondence, which preceded i t " 32 Maine 214, 223. In referring to the prior negotiations the Court said: *' Admitting the occasion of its introduction to be correctly stated, yet when language was used equally applicable to those and other

ADMISSIBILITY

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WORK

dispute among the litigating parties as to the meaning of an article of a treaty under interpretation. The Court has not attempted to appraise the relative probative values of deductions drawn from the text itself and of evidence furnished by prior negotiations. Nor has the Court shown any preference for one form of evidence over another. The Court in ascertaining the design of the contracting parties has followed a simple method of using all possible sources of evidence at its disposal. A careful examination of the cases involving arguments for or against the use of preparatory work as evidence in treaty interpretation leads to the conclusion that, with a few exceptions,115 there has not occurred any real conflict between preparatory work and deductions drawn from the text. Much of the discussion by tribunals on this matter has been caused by arguments raised by litigating parties as to the admissibility of such evidence, which was only confirmatory of the inferences deduced from the text of the treaty. Tribunals, under such circumstances, while adgrants, the argument cannot be sound, which would introduce a limitation of such general language to grants of a particular class not named in the Treaty to the exclusion of others equally embraced by the language used. It is more reasonable to conclude, that the negotiators perceiving the necessity of such provisions, to confirm one class of grants, concluded to make the provision general, that it might include grants made upon other portions of the line, if such should be found, instead of restricting them to a class of grants especially calling for those provisions. There would, in such case, be nothing inconsistent with each other in the correspondence and Treaty stipulations. A judicial tribunal would not be authorized to limit the plain and unrestricted language of a treaty to the accomplishment only of the particular purposes, which induced the parties to introduce each article. The intention is to be ascertained rather from the ambiguous language finally agreed upon, than from the anterior correspondence." Ibid., p. 223. 115

See Asherberg Hopwood and Crew, Ltd. v. Quaritch, discussed in Chapter II in connection with respect for "clear meaning", supra, pp. 49-51.

I4C

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mitting it to be unnecessary to resort to such work which did not in fact challenge the conclusions drawn from an analysis of the text or otherwise, have not hesitated to discuss the preparatory work invoked for the purpose of dispelling any possible doubt raised by litigating parties. In the course of discussion, however, some tribunals occasionally have pronounced that such work should not be used for the purpose of changing the " clear " and " precise " terms of a treaty. These pronouncements have frequently been made, as has been noted, where deductions drawn from textual analysis were not challenged by evidence. The soundness of such a view, therefore, has not been adequately tested by a situation where the text would be directly challenged by evidence furnished by prior negotiations and where the " clearness " of the " clear meaning " and the "preciseness " of the " precise terms " would seem questionable in the face of evidence showing that the parties had employed terms in a sense totally different from what they might normally have. In other words, the very fact that inferences drawn from a text are directly challenged by external evidence would seem to furnish sufficient ground for refuting the argument that the text has clearly expressed the design of the contracting parties. A dictum uttered in cases where there is no need for it can hardly be regarded as a safe guide for tribunals in dealing with actual problems arising from a variety of circumstances. An arbitrary rule to exclude from due consideration by a tribunal evidence furnished by preparatory work might therefore lead to constructions not contemplated by the contracting parties. Moreover, judicial practices in fact do not seem to follow such a dictum; on the contrary, in a great number of cases decided by international and national tribunals, evidence furnished by preliminary negotiations has been freely used for the purpose of ascertaining the sense in which terms actually were employed by the contracting parties.

CHAPTER

VI

VERSIONS IN DIFFERING LANGUAGES

IN trying to ascertain the common design of the contracting parties, tribunals not infrequently find themselves in a situation where the different languages used in a treaty do not seem to express the same meaning. If both languages, declared authentic and original by the treaty, produce a variation in their meaning or scope in regard to the obligations contracted, difficulties arise when the treaty is applied to objects of the external world. A s such instances are not lacking, it seems therefore worth our attention to study this subject in a special chapter to see how such difficulties are judicially settled. C O M P E T E N C E OF T H E I N T E R N A T I O N A L LABOR ORGANIZATION IN REGARD TO I N T E R N A T I O N A L REGULATION OF T H E CONDITIONS OF LABOR OF PERSONS E M P L O Y E D I N AGRICULTURE

In the second advisory opinion 1 the Permanent Court of International Justice was called upon to decide whether, according to Part X I I I of the Treaty of Versailles, the competence of the International Labor Organization extended to international regulation of the conditions of labor of persons employed in agriculture. The Court took notice that the argument for incompetence of the International Labor Organization over conditions of labor of persons employed in agriculture rested almost entirely on the contention that, becausc the words " industrie " and " industrielle " which ordinarily would refer to manufacturing, occurred in the French text of 1

Pub. P. C. I. J. ( A / B ) , No. 2 ; see also

su.pra,

pp. 84, 95.

141

142

TREATY

certain clauses

INTERPRETATION

BY

TRIBUNALS

(the E n g l i s h text used the

terms " i n d u s t r y "

and " i n d u s t r i a l " ) ,

corresponding

Part X I I I

of

the

T r e a t y o f Versailles should be confined within that limit.® T h e C o u r t consulted the French dictionary by Littre and found that the words " Industrie " and " industrielle " might be used both in a broad sense as to include agriculture and in a limited sense confined to m a n u f a c t u r i n g only.

The Court

said that, while there could be no doubt that these words were generally used in a special and restrictive sense, the question confronting the C o u r t was in w h a t sense, reading the T r e a t y as a whole, they should be understood in the Treaty.* B y Article 440 o f the T r e a t y of Versailles it was provided that both the English and French texts were authentic.

The

C o u r t proceeded to examine the English words " industry " and " industrial " f r o m the O x f o r d Dictionary and found that they too possessed both the broad and the limited senses. It s a i d : 4 Evidently, the function of the French words " Industrie" and " industrielle " is not essentially unlike that of the English words " industry " and " industrial." Though used in a restricted sense in opposition to agriculture, in their primary and general sense they include that form of production. A t the present day the adjective is, especially in French, most commonly used in relation to the arts or manufactures, and would ordinarily be so understood, unless the context indicated that it was to be interpreted otherwise. But the context is the final test, and in the present instance the Court must consider the position in which these words are found and the sense in which they are employed in Part X I I I of the Treaty of Versailles. F r o m the various relevant articles of P a r t X I I I , wherein 2 Pub. P. C. I. J. (A/B), No. 2, p. 33. s

Ibid., p. 35.

4

Ibid.

VERSIONS

IN DIFFERING

LANGUAGES

the same words " industrie " and " industrielle " were used, the Court concluded that it was the design of the Contracting Parties to employ these words in a sense wide enough to embrace all forms of industry including agriculture." Inasmuch as the Court found that in the French as well as the English language the words that were employed in the treaty might include agriculture, the case did not present an example of a situation where one version employed a word that could not well be regarded as at least normally embracing an occupation which was well within the scope of the corresponding word of the other version. N A T I O N A L I T Y DECREES ISSUED IN T U N I S A N D MOROCCO

In this case 8 the Court was confronted with the question of interpreting the sense of Article 15, paragraph 8, of the Covenant of the League of Nations. The Court noted that there was a slight difference in wording as between the French and English texts of the said paragraph, " which, moreover, do not exactly correspond." 7 The English text read: If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendations as to its settlement. The French text read : Si l'une des parties pretend et si le Conseil reconnaît que le différend porte sur une question que le droit international laisse à la compétence exclusive de cette partie, le Conseil le constatera dans un rapport, mais sans recommander aucune solution. Supra, pp. 84, 95. « Pub. P. C. I. J. (A/B), No. 3. ' Ibid., p. 21. 6

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T h e Court was of the opinion that the two versions " must in the present case he regarded as having the same meaning." 4 It declared that f r o m one point of view it might well be said that the jurisdiction of a state was exclusive within the limits fixed by international l a w — u s i n g this expression in the wider sense, namely, embracing both customary law and general as well as particular treaty law; but a careful scrutiny o f paragraph 8 of Article 15 of the Covenant showed that it was not in this sense that exclusive jurisdiction was referred to in that paragraph. T h e English text "solely within the domestic jurisdiction " seemed to the Court to mean certain matters which, though they might very closely concern the interests of more than one state, were not in principle regulated by international law, and as regards such matters each state would be the sole judge. This interpretation, in the opinion of the Court, followed from the " actual terms " of paragraph 8 of Article 15 of the Covenant, and was also in harmony with that Article taken as a whole." T h e Court said that Article 15, in effect, established the fundamental principle that any dispute likely to lead to a rupture which was not submitted to arbitration in accordance with Article 13 " shall " be laid before the Council, and that the reservations generally made in arbitration treaties were not to be found in that Article; that, having regard to this very wide competence possessed by the League of Nations, the Covenant contained an express reservation protecting the independence of States; that this reservation was to be found in paragraph 8 of Article 15, without which the internal affairs of a country might, because they appeared to affect the interests of another country, be brought before the Council and form the subject of recommendations by the League of Nations; and that under the terms of paragraph 8 of Article 8

Ibid., p. 22.

»Ibid., p. 24.

VERSIONS

IN DIFFERING

LANGUAGES

15 the League's interest in being able to make such recommendations as were deemed just and proper in the circumstances with a view to the maintenance of peace, " must give way to the equally essential interest of the individual State to maintain intact its independence in matters which international law recognizes to be solely within its jurisdiction." Thus, the Court deduced from the context of the Article a conclusion which appeared to be in harmony with the English version of paragraph 8, and interpreted the French text accordingly. THE MAVROMMATIS PALESTINE CONCESSIONS

In the second judgment 10 the Permanent Court of International Justice was interpreting, among other things, the Eleventh Article of the Mandate for Palestine, of which the English and French texts were slightly at variance. The English text said that the Administration of Palestine shall have full power to provide for public ownership or control of any of the natural resources of the country or of the public works, services and utilities established or to be established therein. The French text said that the Administration aura pleins pouvoirs pour decider quant à la propriété ou au contrôle public de toutes les ressources naturelles du pays, ou des travaux et services d'utilité publique déjà établis ou à y établir. The Court found that, according to the French version, the powers thus attributed to the Palestine Administration might cover every kind of decision regarding public ownership and every form of " contrôle " which the Administration might exercise either as regards the development of the 10 Pub. P. C. I. J. ( A / B ) , No. 9.

6

TREATY

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natural resources of the country or over public works, services and utilities. T h i s might include the power to grant concessions as well as to annul contracts already existing. The English text contemplated the acquisition of public ownership or public control over any of the national resources of the country or over the public works etc. T h e majority of the Court deemed that the English version had " a more restricted meaning " than the French and s a i d : 1 1 Where two versions possessing equal authority exist, one of which appears to have a wider bearing than the other, it is bound to adopt the more limited interpretation which can be made to harmonize with both versions and which, as far as it goes, is doubtless in accordance with the common intention of the Parties. The Court observed that in the present case this conclusion was indicated with especial force, because the question concerned an instrument laying down the obligations of Great Britain in her capacity as Mandatory for Palestine and because the original draft was " probably made in English ". Nevertheless, the Court did not feel satisfied with the very restricted sense of the English expression " public control ", which would cover only cases where the government took over and itself directed undertakings of one kind or another. T h e Court found that the English expression was also used to indicate certain forms of action taken by the state with regard to otherwise private undertakings. It said, " control always means measures of a special character in connection with an economic policy consisting of subordinating, in one form or another, private enterprise to public authority. This wider meaning of the English expression appears to be the only one which does not nullify the expression ' controle public ' in the French version. It is in this sense that even the grant 11

Ibid., p. 19.

VERSIONS

IN DIFFERING

LANGUAGES

of a concession of public utility to an individual or to a company may be accompanied by measures which amount to an exercise of ' public control'." 12 It concluded that this wider meaning of the English expression which could be made to harmonize with both versions was the sense understood by both Parties. Thus it seemed to the Court that, although the English expression " public control " had a more restricted meaning than the corresponding French term, the English expression was still broad enough to embrace certain acts of the Administration in granting a concession to a particular concessionaire. This " wider meaning ", reasonably assignable to the English expression, did not nullify the corresponding French expression " controle public ", and was, therefore, accepted. Judge Moore dissented 14 on the ground that the precise meaning of the phrase " public ownership or control " in Article XI was clearly shown by the second paragraph of the Article, which authorized the Administration to arrange with the Jewish agency to construct and operate public works, services and utilities, " in so far as these matters are not directly undertaken by the Administration." He said: 1 4 This [any undertaking directed by the Administration itself] is undoubtedly what the words [public control] mean in the English text." He strongly believed that the French text was a " literal translation " of the English text and was intended to mean the same thing; but unfortunately this literal translation was a mere verbal imitation, which, if taken alone, might be so interpreted as to pervert or even destroy the meaning of the other text. 15 Even taking the two texts as they stood, he felt that the 12

Ibid., p. 20. " Ibid., p. 54. " Ibid., p. 69. 15 Ibid.

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majority did not reach the correct conclusion; for they followed a meaning, which they suddenly discovered in the emergency, of the English text having " a n unnatural and previously unheard of elasticity which has made it unnecessary to try the suggested possibilities of the French text." 18 On the whole, however, Judge Moore seemed to agree with the line of reasoning of the majority, but he did not feel satisfied with the adoption of the " wider meaning " suddenly discovered in the English text, and he also suggested that the second paragraph of the Article might throw light on the first paragraph. The majority seemed to believe that the English expression was broad enough to embrace the meaning of the French expression. On this conclusion of fact, Judge Moore disagreed with the majority. In the thirteenth advisory opinion " the Court had no difficulty in harmonizing the English word " workers " with the French " travailleurs salariés " as used in Part X I I I of the Treaty of Versailles in the sense of wage-earners, as distinguished from employers who might incidentally engage in some kind of personal work. It is perhaps not out of place to recall here that in the tenth advisory opinion, 18 when the Convention of Lausanne was drawn up in French alone, the Court frankly recognized that the meaning of the disputed term " établissement " " must " be sought in the French language. From the cases just discussed it seems that where two authoritative languages used in a treaty appeared to be slightly at variance with each other, the Permanment Court of International Justice frequently resorted to internal or external evidence with a view to finding out the real design 16

Ibid., p. 70.

17

Pub. P. C. I. J. ( A / B ) , No. 19; see also supra, pp. 76-78.

18

Supra, p. 31.

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IN DIFFERING

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of the contracting parties in regard to the matter in dispute. Where such specific evidence was lacking, the Court said that it was bound to adopt the one interpretation which was more limited in meaning or scope than the other and which could be made to harmonize with both versions. In one case, however, by adopting the wider meaning of the more restricted version, the Court succeeded in minimizing the differences to such an extent as almost to equalize the potential differences of the two languages. In the other cases the Court did not face a situation where one version was deemed to be too narrow to embrace the meaning of the other. " N A V A L A N D M I L I T A R Y WORKS OR MATERIALS "

In interpreting the phrase " naval and military works or materials " as applied to the " hull cases Umpire Parker of the Mixed Qaims Commission between the United States and Germany invoked the aid of other sources of evidence in harmonizing the English word " materials " with the French word " matériel ". Annex I to the reparation provisions of the Treaty of Versailles, applicable to the United States through the Treaty of Berlin,20 provided : 2 1 (9) damage in respect of all property wherever situated belonging to any of the Allied and Associated States or their nationals, with the exception of naval and military works or materials, which has been carried off, seized, injured or destroyed by the acts of Germany or her allies on land, on sea or from the air . . . [was to be fully compensated by Germany.] The Umpire observed that the phrase " naval and military works or materials " had no technical significance, because it 19

M. C. C. ( U . S. & G e r . ) , op. cit., p. 75-

20

See also Administrative Decision No. I, ibid., pp. 1, 2 ; No. I I , ibid, PP- 5, 6. 21

Cited ibid., p. 78.

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was not found in previous treaties and had never been judicially construed (except the construction of the Reparation Commission, 22 which the Umpire held not binding on his Commission). The Umpire reviewed Article 232 of the Treaty of Versailles which did not require Germany to pay indemnities for the cost of war on the side of the Allies, because of Germany's limited capacity to pay; then he said that under the provision of paragraph 9 of Annex 1 it was " clear " that Germany was obliged to compensate the losses of property, belonging to the Allied Governments or their nationals, not impressed by reason of its inherent nature or of its use with a "military character", and that, reading the reparation provisions as a whole, it was equally " clear " that property so impressed with a " military character " was embraced within the phrase " n a v a l and military works or materials." 28 It was in the light of these circumstances that he proceeded to analyze the French word " matériel " in the singular and the English word " materials " in the plural. According to the Century Dictionary the French word " matériel " meant " the assemblage or totality of things used or needed in carrying on any complex business or operation, in distinction from the personnel, or body of persons, employed by the same." Applied to war, it included " military supplies and equipments, arms, ammunition, baggage, provisions etc." 24 The English word "materials" meant the " constituent or component parts of a product or that of or with which any corporeal thing is or may be constituted, made or done," (Century Dictionary). Then he said : 2 5 22 23

Ibid., p. 76. Ibid., p. 78.

24

Ibid., p. 79. Littré defines the word " matériel " as meaning " the articles of all kinds taken as a whole which are used for some public service in contradistinction to personnel." 25

Ibid., pp. 79-80.

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Reading the French and English texts together, it is apparent that the word " materials " is here used in a broad and all inclusive sense, with respect to all physical properties not attached to the soil, pertaining to either the naval or land forces and impressed with a military character. . . . The term " materials " as here used includes raw products, semi-finished products, and finished products, implements, instruments, appliances, and equipment, embracing all movable property of a physical nature from the raw material to the completed implement, apparatus, equipment, or unit, whether it were an ordinary hand grenade or a complete and fully equipped warship, provided that it was used by either the naval or land forces of the United States in direct furtherance of a military operation against Germany or her allies. This " broad " and all-inclusive sense of the English word " materials " or the French word " matériel " seems quite impressive. This sense was drawn from both words together, and supported by the evidence that Germany was not required to pay the cost of war of the Allies under Article 232 of the Treaty of Versailles. It is because of the " military character " of the objects enumerated by the Umpire, that Germany was freed from making any compensation for them under Article 232 and, according to the Umpire, also under paragraph 9 of Annex I as belonging to the class of " naval and military materials." T H E GUASTINI CASE

In the Guastini case decided by Umpire Ralston of the Italian-Venezuelan Arbitration Commission of 1903, 24 the Italian Commissioner suggested that the term " danni " (damage) of the Italian version had a much broader signification than the terms " injury " of the English text. T h e phrase " damage to property " (as in Italian) would cover 29

Ralston, Venezuelan Arbitrations of Jpoj, op. cit., pp. 730-753.

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all kinds of damages, while the phrase " i n j u r y to property " w a s interpreted by the Umpire in a previous c a s e 1 7 to be limited to cases wherein a legal w r o n g w a s involved. Umpire

The

said:28

The text of the Protocol is in English and in Italian. It was the result of long negotiations between the representatives of England, Germany, and Italy on the one hand and Mr. Bowen, Venezuela's representative on the other. These negotiations were carried on almost altogether in English and the drafts (afterwards becoming protocols) were in English. It is therefore evident that the basic language is English, and in case of difference of translation resort should he had to it. Thus, the U m p i r e deemed that the language used in the negotiations and d r a f t s was the "basic " language of the Protocol and that it w a s to be preferred in determining the real design of the parties in case the other version, translated f r o m the original d r a f t but declared equally authoritative in the treaty, should have a different meaning.

The Umpire

observed further that, even if this were not so, no difficulty would arise, because the language employed, used as it was in a document in a sense legal, was to be interpreted with some regard to law, and because the Italian w o r d " danni ", when used in a legal w a y , had the same signification as the English word " i n j u r y " in its legal sense. Articles 1 1 5 1 and 1 1 5 2

M

T h e U m p i r e cited

of the Italian Civil Code wherein

the word " danni " w a s employed in much the same w a y as " injury " importing damage resulted f r o m a legal wrong. T h e Umpire s a i d : 8 0 " F u r t h e r m o r e , if difference exists, it should be settled in f a v o r of the party obligated." 27

See the Sambiaggio Case, ibid., p. 666.

28

Ibid., p. 749.

28

Cited ibid.

30Ibid.;

for

Cf. Sweden v. United States, 26 Am. J. Int. L . 83s, 851. other

international

cases,

see Joseph

Chourreau

v.

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153

Thus the Umpire interpreted the two words with the aid of evidence both internal and external to the text in question. And in the course of his opinion the Umpire declared that the language used in the negotiations and drafts was the " basic " language of the treaty, and that in case of difference of translation resort should be had to this " basic " language. U. S. V. ARREDONDO

In the case of the U. S. v. Arredondothe Supreme Court of the United States had before it the question of the validity of the grants of land by His Most Catholic Majesty to certain former Spanish subjects in Florida. Among other things, Article 8 of the Treaty of Cession between Spain and the United States, signed on February 22, 1819, 12 was a determining factor. The Article provided: " All grants of land made before the 24th of January, 1818, by His Catholic Majesty, or by his lawful authorities, in the said territories ceded by His Majesty to the United States shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty. The Spanish text for the term "shall be" (ratified and confirmed) was "quedan" which literally means "shall remain" (confirmed). The question before the Court was which of United States, 2 Moore, Arbitrations, 1145; the Indian Depredation Claims, 3 Moore, Arbitrations, 2436; the Venezuelan Bond Cases, 4 Moore, Arbitrations, 3616, 3623; Tesdorff v. German State, 3 T . A . M. 22; The National Bank of Egypt v. The Bank of Austria-Hungary, 3 T . A. M. 236; Weitsenhoffer v. Germany, 5 T . A . M. 935; and the Standard Oil Company Tankers Case, 22 Am. J. Int. L. 404. 41

6 Pet. 691.

82

2 Malloy 1651. Ibid., p. 1654.

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these two texts expressed the real agreement of the Parties. I f the Spanish text expressed it, then the grants would be valid from the beginning regardless of subsequent acts o f Congress; or if the English text expressed it, then action by Congress was necessary in order to complete the grants. It was to choose between the two languages that Justice Baldwin stated the opinion o f the Court as follows : 8 4 . . . and thus considering the Treaty in both languages, and each as is declared at its head, " original", the one version neither controls nor is to be preferred to the other: each expresses the meaning of the Contracting Parties respectively, in their own language, as in the opinion of each, expressing and declaring the intention of both. If they are mistaken, the words used do not and are not understood afterwards by the Parties to convey the same meaning in both languages; then both being original and of equal authority, we must resort to some other mode than the inspection of the Treaty to give it a proper construction. The Court first resorted to the doctrine that the K i n g of Spain was the grantor, whose will should control and whose language should be given more weight. This conclusion was reinforced by drawing comparisons with the latter p a r t 8 5 o f the same Article, wherein the Spanish words " quedado " and " que dan " were again used in connection with nullifying certain grants, and the corresponding English version said: " . . . hereby declared and agreed to be null and void." The Court deemed that the meaning o f the Spanish word should be the same in confirming as in annulling grants. T h e decision o f the Court seemed to rest on this internal evidence as much as on the principle that the grantor's language should be given more weight. « 6 Pet. 691, 737-73835

Ibid., p. 742.

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155

In the case of U. S. v. Percheman," Mr. Chief Justice Marshall, in construing the same Article 8 of the treaty of cession, resorted to the modern usage of nations not to annul private rights in case of cession, and to Article 2 of the same Treaty, which enumerated the objects (consisting of public property only) to be ceded, and then said that Article 8 was " apparently introduced on the part of Spain, and must be intended to stipulate expressly for the security to private property which the laws and usages of nations would, without express stipulation, have conferred." 87 In regard to the wording of Article 8, he saw no difficulty in construing the phrase " shall be ratified and confirmed " as meaning that the grants " shall be confirmed " by force of the treaty itself but not by subsequent acts of Congress."8 The reliance placed upon internal and external evidence caused the Court to construe the English text in accordance with the meaning of the Spanish. It is perhaps not out of place to mention here that, in interpreting treaties with the Indians, the Supreme Court of the United States has usually followed the sense in which the terms employed in a treaty was understood by the unlettered people; thus in Worcester v. Georgia,™ Justice M'lean said: 4 0 The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they 89

7 Pet. 51. Ibid., p. 87.

87

M Ibid. See also how two versions were harmonized in the 2 Lloyd 70, and the Santissima Trinidad, 7 Wheat. 283. 89

Mowe,

6 Pet. 5 1 5 ; see also the Kansas Indians Case, 5 Wall. 737; Choctaw Nation v. U. S., 119 U. S. 1 ; Jones v. Meeham, 175 U. S. I. «0 6 Pet. 515, 582.

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should be considered only in the latter sense. . . . How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction. SOCIÉTÉ

AUDIFFREN-SINGRUN

V.

LIQUIDATION

MORLANG,

BINGER ET SOCIÉTÉ A T L A S

This was a case decided by the Civil Tribunal of Strasbourg (first chamber), on July 21, 1 9 2 7 . " Article 3 1 1 of the Treaty of Versailles provided, according to the English text, that the " rights of industrial, literary and artistic property which are in force in territories separated from Germany . . . shall be recognized by the State to which the said territory is transferred and shall remain in force in that territory for the same period of time given them under the German law." T h e French version said that such rights " an moment de la séparation avec L'Allemagne, seront reconnus " by the State to which the said territory was transferred " et demeureront en vigueur sur ce territoire pour la durée qui leur sera accordée suivant la législation allemande." Corresponding to the English word " shall " the French text used the word " sera." T h e Article was invoked in the case by the plaintiff whose patent was still valid in Germany as a result of two prolongations granted after the armistice by the German Government, and who contended that the effect of these prolongations in Germany was to produce automatically, according to Article 3 1 1 of the Treaty of V e r sailles, similar prolongations of the duration of its patent in Alsace-Lorraine. In supporting this contention the plaintiff argued that the word " sera " used in the Article necessarily implied futurity. The Tribunal said : 4 2 « 55 Clunet (1928). 733« Ibid., p. 734-

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. . . des dispositions exceptionnelles doivent, par leur nature même, être interprétées striotment ; . . . ce mot " sera à lui seul, n'est pas décisif et ne saurait, suffire à démontrer, à défaut d'une déclaration formelle, que la validité des brevets ainsi maintenus doive bénéficier de toutes prolongations possible édictées ultérieurement par la législation allemande ; . . . l'examen de l'édition anglaise du Traité, langue dans laquelle fut rédigé, au cours des discussions d'élaboration, le chapitre visant ces droits de propriété, est un enseignement précieux sur les intentions des rédacteurs du Traité de paix; . . . ce texte, en effet, ne mentionne pas la futur. . . . . . . il serait illogique et contraire à toute notion d'équité de donner à la nation ennemie la possibilité, par une législation postériure, de modifier les caractères d'un brevet dont le droit acquis avait seul été reconnu sur les territoires désannexés, et de pouvoir donner ainsi à des brevets reconnus dans ces conditions une durée supérieure à celle prévue normalement. . . . Because the English version, which was used during the preparation of the Article in question, did not imply the idea of futurity, and because the French word " sera " was not decisive by itself to sustain a construction so contrary to all conceptions of equity, the Tribunal rejected the plaintiff's contention. A study of cases involving questions arising out of differences in meaning between two authoritative languages seems to lead to the conclusion that tribunals, in dealing with such differences, generally resort to various sources of internal and external evidence for the purpose of ascertaining the real design of the contracting parties in regard to the matter contracted. In cases where evidence does not lead to definite conclusions as to which version expresses the actual agreement of the parties, tribunals generally go as far as possible to draw the sense from, and in harmony with, both versions. Nevertheless, tribunals do not hesitate to declare the one

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language used in the negotiations and drafts as " basic " and as " un enseignement précieux sur les intentions des rédacteurs " of the treaty when evidence shows that the other version, although declared equally authoritative in the treaty, is a mere translation. Respect for the requirements of the narrower of two differing versions which form the equally authoritative texts of a treaty, has been acknowledged. Tribunals, however, have seldom found that one version is too narrow to embrace the benefits claimed under the other.

C H A P T E R

VII

T H E " R U L E OF L I B E R A L C O N S T R U C T I O N

"

THE Supreme Court of the United States in its long experience in treaty interpretation 1 has frequently referred to the so-called " familiar rule of liberal construction." A s the Supreme Court of the United States has rendered numerous decisions relating to the interpretation of treaties, and as its decisions in that field are frequently cited by international tribunals, it seems proper to allot some space in this monograph to study the " familiar rule " frequently referred to by that Court. W h a t are the precise nature and scope of this " familiar rule of liberal construction " as referred to by the Supreme Court of the United States? W h e n and how has it been applied by that Court? These are questions the answers to which can only be derived from a careful study and analysis of the decisions handed down by that Court, in which the rule was mentioned. S H A N K S V. D U P O N T

In the case of Shanks v. Dupont2 the Supreme Court of the United States was confronted with the task of interpreting the meaning of the term " British subjects " as used in 1 While the French Courts of Cassation have persistently refused to interpret treaty provisions which are deemed to affect " public o r d e r " only, and while this French practice has been followed by some other European countries, the Supreme Court of the United States has not hesitated to interpret treaty stipulations when treaty provisions are involved in adjudication. 2

3 Pet. 242, decided in 1830. 159

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Article I X of the Treaty with Great Britain of 1794. Article provided:

The

British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; . . . neither they, nor their heirs or assigns shall, as far as respects the said lands, and the legal remedies incident thereto, be regarded as aliens. T h e issue was whether the term " British subjects " embraced those persons whose allegiance might be claimed at the same time both by Great Britain and by the United States. The defendants contended that the purpose o f the Article was to benefit British subjects not at the same time possessing American nationality; and that Mrs. Shanks w h o had retained her status as an American citizen did not fall within the purview of the Article. T h e Court held that Mrs. Shanks' American nationality had been virtually dissolved by the Peace Treaty of 1783; that, even if her American allegiance had not been thus dissolved, it should be admitted that in the view of the British Government she was at that time a British subject; and that, being a British subject and holding lands in the United States, she was therefore within the words of the Treaty. T h e Court went further asking " w h y ought she not to be held within the spirit and intent? " It said: * If the Treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; why should not the most liberal exposition be adopted? The object of the British Government must have been to protect all her subjects holding land in America from the disability of alienage; in respect to descents and sales. The class of American royalists could at least, in 8

Ibid., p. 249.

THE "RULE

OF LIBERAL

CONSTRUCTION"

161

her eyes, have been in as much favor as any other; there is nothing in our public policy which is more unfavorable to them than to other British subjects. . . . This part of the stipulation then being for the benefit of British subjects who became aliens by the events of the war, there is no reason why all persons should not be embraced in it, who sustained the character of British subjects, although we might also have treated them as American citizens. . . . It seems to us, then, that all British born subjects whose allegiance Great Britain has never renounced, ought, upon general principles of interpretation, to be held within the intent, as they certainly are within the words, of the Treaty. Thus, the Court decided, on the basis of deductions drawn from the words of the Treaty, from the purpose of the provision in question, from the conduct of the Parties relating to such aliens, and from the absence of any evidence to the contrary, that Mrs. Shanks was a " British s u b j e c t " within the meaning of the Treaty. T h e design of the Contracting Parties was thus definitely proved by various sources of evidence, and the reference made by the Court to " liberal exposition " did not seem to be necessary to its decision, although such a consideration would confirm the Court's conclusions. H A U E N S T E I N V. L Y N H A M

In this case * Article V of the Treaty with the Swiss Confederation of 1850 was under interpretation. T h e Article read as follows: In case real estate situated within one of the territories of the Contracting Parties should fall to a citizen of the other Party, who, on account of his being an alien, could not be permitted to hold such property in the state or in the canton in which it may be situated, there shall be accorded to the said heir, or other successor, such term as the laws of the state or canton will 4

100 U . S. 483, decided in 1879; see also supra, pp. 36-58.

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permit to sell such property; he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty, ctc. The precise issue was whether the words " such term as the laws of the state will permit" applied to the selling of alien property, could be construed to mean that, where a state did not provide any time limit for selling such property, such sale should not take place at all. The Court declared that it was " clearly the intention of the clause in question in the Treaty of 1850 to secure the beneficiaries absolutely the right to sell such property." It admitted that the disputed phrase constituted a limitation but said that " the terms of the limitation imply clearly that some time, and not that none, was to be allowed." It continued: 5 Where a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred. Such is the settled rule of the Court. T o illustrate this " settled rule " the Court cited Shanks v. Dupont/ in which, however, the reference made by the Court to " liberal exposition " was not, as has been noted, essential to the decision of that case. The Court adverted to the consideration that in an earlier treaty between the same Parties, a definite time limit was provided for in the treaty itself for selling such property, and that in the present Treaty the time limit was dropped and the clause in controversy was substituted for it. The Court attributed this change to the design of the Contracting Parties to leave it to the State laws to fix the limit. According to the Court, " if a State or Canton had a law which • 100 U. S. 483, 487. • 3 Pet. 242; see supra, pp. 159-161.

THE "RULE

OF LIBERAL

CONSTRUCTION"

163

imposed a limitation in this class of cases, nothing more was necessary. If it had not such a law, it was competent to enact one, and until one exists there can be no bar arising from the lapse of time." 1 The Court considered its construction to be in harmony with the Judiciary Act of 1789, which gave to State statutes of limitation the same effect in the local courts of the United States which they had in the courts of the States respectively that enacted them.* The Court said also that its construction " derives support from the fact that the Treaty provides [Article V I ] that any controversy which may arise among the claimants to the succession shall be decided according to the laws and by the judges of the country where the property is situated." 9 Thus the Court, in reaching its decision, relied upon the " clear " implications of the text and upon internal and external evidence available. The Court's reference to " liberal construction " in this case was, as in Shanks v. Dupont, not necessary to its decision which had been arrived at through consideration of all sources of evidence available. GEOFROY V. RIGGS

In this case Article 7 of the Consular Convention of February 23, 1853, between the United States and France 1 1 was the subject of interpretation before the Supreme Court of the United States. The Article provided that " in all States of the Union " Frenchmen " shall " enjoy the right of possessing personal and real property and to inherit by the same title and in the same manner as the citizens of the United States, and that " in like manner " the Government 10

T 100

U . S. 483, 488.

«Ibid., pp. 487-488.

»Ibid., p. 488. 10

133 U. S. 258, decided in 1889.

111

Malloy 528, 531.

164

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of France was to accord to the citizens of the United States the same rights within its territory as were enjoyed by its own citizens. 12 T h e precise issue involved was whether " all States of the Union " embraced the District of Columbia. The Court considered the Article not happily drawn, because it left in doubt what was meant by " all States of the Union." While in the acts of Congress the District of Columbia did not fall within the definition of a State, yet " the term is used in general jurisprudence and by writers on public law as denoting organized political societies within an established government." " In the latter sense the District of Columbia would be included in the " States of the Union." T h e Court s a i d : 1 4 [Treaties] shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. A s they are contracts between Independent nations, in their construction words are to be taken in their ordinary meaning, as understood by the public law of nations, and not in an artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended, and it has been held by this Court that where a treaty admits of two constructions, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred. 15 T h e Court then interpreted the phrase " all States of the Union " as meaning all political communities which formed part of the United States. For the purpose of the Treaty, the District of Columbia was as much a State as Virginia, and the Court could not see any motive for depriving the 12

Article 7, cited 133 U. S. 258, 268.

18

Ibid., pp. 268-269.

14

Ibid., pp. 271-272.

16

Hauenstein v. Lynham, 100 U . S. 483, was cited this time.

THE

"RULE

OF LIBERAL

CONSTRUCTION"

165

French citizens of taking real estate in the District of Columbia while this privilege was openly conceded as regards all the States. 14 Thus the Court, in deciding that the phrase " all States of the Union " embraced the District of Columbia, relied upon the obvious purpose of the Contracting Parties to secure equality and reciprocity between them, which would have been prevented had the treaty been less broadly construed. Again the reference to " liberal construction " was not essential. IN RE ROSS

In this case 1 7 the Supreme Court of the United States was confronted, among other things, with the interpretation of Article I V of the Convention of 1857 between the United States and Japan 18 which provided: Americans committing offences in Japan shall be tried by American consul-general or consul, and shall be punished according to American law. The precise issue here was whether the term " Americans " as used in the Convention included members of the crew of American vessels, who did not possess American nationality. The petitioner, Mr. Ross, who had committed murder upon an American ship in Japanese waters, contended that he, being a subject of Great Britain, was not within the jurisdiction of the American Consular Court at Yokohama, which, according to the Convention, was to try Americans. The Supreme Court of the United States said that the national character of the petitioner, for all the purposes of consular jurisdiction, was determinable by his enlistment as one of the crew of the American ship Bullion and that " by such enlistment he 1 6 133

U. S. 258, 270-271.

17

140 U . S. 453, decided in 1890.

18

1 Malloy 998, 999.

J66

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becomes an American seaman and as such entitled to the protection and benefits of all the laws passed by Congress on behalf of American seamen, and subject to all their obligations and liabilities. . . . He owes for that time to the country to which the ship on which he is serving belongs a temporary allegiance." 19 The Court said that such was also the view of the Department of State.20 The Court declared further that, reading together the Treaty and the statute which enforced the Treaty and applied it to "citizens of the United States and all others to the extent that the terms of the Treaty justify or require", 21 it was satisfied in view of the purpose designed to be accomplished, that " it was intended to bring within our laws all who are citizens, and also all who, though not strictly citizens, are by their service equally entitled to the care and protection of the government." 22 The Court said that a treaty should be construed to give effect to the object designed, and " for that purpose all of its provisions must be examined in the light of attendant and surrounding circumstances. T o some terms and expressions a literal meaning will be given, and to others a large and extended one." " The Court also cited Geofroy v. Riggs wherein the conclusion was said to be " necessary to give consistency to the provisions of the convention." This case was later on referred 2* to by the Supreme Court of the United States as one applying the " rule of liberal " 140 U. S. 453. 472. 20 Ibid., p. 473, a communication of the Secretary of State to the British government on June 16, 1881 was cited. 21

Ibid., p. 475.

"Ibid. "Ibid. " S e e Jordan v. Toshiro, 278 U. S. 123, 127; Nielsen v. Johnson, 279 U. S. 47, 50.

THE

"RULE

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167

construction." Nevertheless, the Court in deciding that the term " Americans" covered persons owing a temporary allegiance to the United States, relied upon the object sought to be effected by the Treaty and also upon the practices of nations in regard to such matters. It was in the light of these " attendant and surrounding circumstances " that the Court decided that the term " Americans" embraced the petitioner. TUCKER V. ALEXANDROFF

The question of interpretation involved in this case " was the meaning of the phrase " deserters from the ships of war and merchant vessels of their country " as used in the Treaty with Russia of 1832.28 The Treaty stipulated that the Parties should afford each other assistance in the arrest and detention, and the return to their ships, of seamen deserting from a vessel of either class. In this case, Alexandroff, a Russian seaman, had been detailed to serve as a member of the crew of the Variag, a Russian ship of war being built at Philadelphia. The Variag had been launched but continued for some time in the water still under construction. It had not yet been actually taken possession of by the Russian Government. Alexandroff had stayed on shore for several months and had never set foot on the Variag. On his desertion from the Russian naval service, the Russian Government, through its consul, sought to apply the provision of the Treaty of 1832. The Supreme Court of the United States was confronted with the question of determining whether the said provision embraced such a case. The Supreme Court said t h a t " where the signatory powers have themselves fixed the terms upon which deserting seamen shall be surrendered, we have no right to enlarge those powers 25

183 U. S. 424, decided in 1901.

28

2 Malloy 1514; quoted, 183 U. S. 424, 429-430.

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upon the principles of comity so as to embrace cases not contemplated by the treaty." " But it said further that a convention should be interpreted in a spirit of uberrima fides and in a manner to carry out its manifest purpose, and that it should receive " a fair and liberal interpretation " to secure peace and amity, as designed by the parties, " as far as it can be done without sacrifice of individual rights." 28 In the present instance, observed the Court, the question was whether the Variag was a ship, and if so, whether Alexandroff was a deserter from such a ship. The Court said that the Variag received the legal character of a ship when it was launched. As to the question whether Alexandroff could be considered to be a deserter from such a ship on which he had never set foot, the Court answered in the affirmative on the ground that a seaman became obligated to serve on a merchant vessel from the time he signed the shipping articles and from that time he might incur the penalties of desertion; that this rule began with the marine ordinances of Louis XIV and was confirmed by practices of maritime nations; that for a ship of war there was a practical equivalent for the shipping articles, and that the detail of Alexandroff was of such a nature; and that from the moment when he was detailed to serve as a member of the crew to take possession of the Variag as soon as it was completed and until relieved therefrom, Alexandroff was as much bound to the service of the Variag, and a member of its crew, as if he had signed shipping articles. The conclusion of the Court seems to be that, although Alexandrof did not literally desert from the Variag, he was just as much bound to the service of the Variag as if he had actually served on the Variag as a member of its crew; that this legal relationship between a vessel and one who had »183 U. S. 424, 436. 28

Ibid., p. 437.

THE " RULE

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"

169

signed the shipping articles or who had been detailed to serve as a member of a crew was well recognized by the maritime nations; and that, therefore, a desertion from such a service was no less covered by the Treaty than an actual desertion from the ship. Judges Gray, Harlan, White, and Chief Justice Fuller dissented 29 on the ground that the Treaty could not be construed to cover a ship which had not been completed or ready to receive her crew, nor to cover a small party of men who were ultimately intended to form part of her crew but had never been on board and instead had remained for several months on shore, doing no naval duty. The dissenting judges admitted that a treaty " must be construed so as to carry out, in utmost good faith, the stipulations therein made with foreign nations ", but they declared that the Court had " no authority to take affirmative action, beyond the fair scope of the provisions of the Treaty, to subject persons within the territory of the United States to the jurisdiction of another nation." 30 They maintained that nations did not generally agree to deliver up to each other deserters from a military force, but that, in order to prevent the ships of war or the merchant vessels of one country from being rendered unfit for navigation by the desertion of their seamen in the ports of another country, they generally agreed to afford each other assistance in the arrest and detention of, and in restoring to their ships, seamen deserting from a vessel of either class; that the United States had made from time to time such treaties with many nations, containing provisions in almost every instance substantially like that of the Treaty with Russia of 1832; that the Treaty spoke of " deserters from the ships of war and merchant vessels of their country," applying only to those who deserted from a 29

Ibid., p. 449. «0 Ibid., p. 446.

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ship as such—not embracing the present case ; and that the provision of the Treaty for the detention of the deserters until " they shall be restored to the vessels to which they belonged, or sent back to their own country by a vessel of the same nation or any other vessel whatever," necessarily implied that they belonged to a completed vessel upon which they could remain from day to day, and the departure of which might require them to be sent on another vessel. From all these considerations the dissenting judges concluded that the present case did not fall within the purview of the Treaty. The difference between the views of the majority and those of the dissenting judges seems to be that the minority maintained that deductions drawn from internal and external evidence showed that the Contracting Parties did not have such a case in their mind and that the Court had no authority to enlarge by interpretation the sense understood by the Parties, while the majority held that the provision was sufficient to cover Mr. Alexandroff who, although not strictly a deserter from a ship, was liable, according to the practice of maritime nations, to punishment for such conduct. In this case the leaning toward a liberal rather than a strict interpretation might have influenced the views of the majority. According to its reasoning, however, sufficient grounds were apparent for the decision without adverting to the matter of liberal construction. TERRACE V. THOMPSON

In this case* 1 Article I of the Treaty of Commerce and Navigation between the United States and Japan, proclaimed April 5, 1 9 1 1 , " was under interpretation. The Article provided : " 363 U. S. 197 decided in 1923, see supra, pp. 133-134. 32

3 U. S. Treaties 2712.

THE "RULE

OF LIBERAL

CONSTRUCTION"

The citizens and subjects of each of the High Contracting Parties shall have the liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessaTy for trade upon the same terms as native citizens or subjects, . . . The appellants argued that the Treaty should be interpreted " frankly and liberally to avoid invidious distinctions and that liberally interpreted, the Treaty would cover leasing land for agricultural purposes, which was the issue in dispute in the case. The Court s a i d : 3 4 We think that this Treaty not only contains no provision giving Japanese the right to own or lease land for agricultural purposes, but, when viewed in the light of the negotiations leading up to its consummation, the language shows that the High Contracting Parties respectively intended to withhold a treaty grant of that right to the citizens or subjects of either in the territories of the other. . . . A careful reading of the Treaty suffices, in our opinion, to negative the claim asserted by the appellants. But if the language left the meaning of the provision doubtful or obscure, the circumstances of the making of the Treaty would resolve all doubts. . . . The Court then referred to the letter of Secretary Bryan to Viscount Chinda," on July 16, 1 9 1 3 , showing that the Contracting Parties agreed in accordance with the desire of Japan not to confer upon the citizens or subjects of each other the right to own land. The Court also observed that the phrase " to lease land for residential and commercial purU. S. 197, 204.

33

263

34

Ibid., p. 223. Ibid., pp. 2 2 3 - 2 2 4 .

35

Ij2

TREATY

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poses " was substituted in the T r e a t y f o r a phrase of broader significance in an earlier d r a f t which might include agricultural purposes.

T h i s seemed to indicate an endeavor on the

part of the Contracting Parties to limit the use of land f o r " residential and commercial p u r p o s e s " only.

Thus

the

design o f the Contracting Parties being definitely proven by evidence, the Court rejected the argument of the appellants in f a v o r of a " liberal interpretation " o f the t e x t . " A S A K U R A V. SEATTLE

In this c a s e " the Supreme Court o f the United States w a s interpreting the same Article I of the T r e a t y with Japan of 1911. B u t this time the issue was whether the business o f pawnbroker was " trade " within the meaning of the Article. The Court s a i d : M Treaties are to be construed in a broad and liberal spirit, and when two constructions are possible—one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred. T h e Court declared that treaties f o r the protection of citizens of one country residing in the territory of another were numerous and that they were made f o r good understanding between nations.

It continued that the language of

this

T r e a t y was comprehensive, that the phrase " to carry on trade " was broad, and that it was not to be given a restricted meaning was plain.

T h e terms used in Article I, in the

opinion of the Court, all pointed to the conclusion that it w a s the design of the Contracting Parties that the citizens and subjects of either should have liberty in the territory of the " S e e also Webb v. O'Brien, 263 U . S. 313, 323; Frick v. Webb,

263 U. S. 326, 333. Both were decided in 1922. 37

265 U. S. 332, decided in 1923.

»• Ibid., p. 342.

THE

" RULE

OF LIBERAL

CONSTRUCTION

"

other to engage in all kinds and classes of business that were or reasonably might be embraced within the meaning of the word " trade " as used in the Treaty.** Thus the Court deduced from the comprehensive terms of the Article a conclusion that the business of pawnbroker was covered by the term " trade " as used in the Article. The reference made by the Court to " liberal construction " in this case did not seem essential to the Court's decision. JORDAN V. TASHIRO

In this case 40 the same Article I of the Treaty of Commerce and Navigation between the United States and Japan, proclaimed April 5, 1 9 1 1 , was involved. This time it was not sought to apply it to a pawnbroker but to the operation of a Japanese hospital in the territory of the United States. Before going to the discussions of the Court, it seems useful to examine the provision again in detail. The Article provided: The citizens and subjects of each of the High Contracting Parties shall have the liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale or retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established. The Court s a i d : 4 1 The principles which should control the diplomatic relations »»Ibid. *°27& U. S. 123, decided in 1928. 41 Ibid., p. 127. in 1913.

Cf. Patsone v. Commonwealth, 232 U. S. 138, decided

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of nations, and the good faith of treaties as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them. Upon like ground, where a treaty fairly admits of two constructions, one restricting the rights that may be claimed under it and the other enlarging them, the more liberal construction is to be preferred. The Court admitted that a narrow and restricted sense would limit the terms " commerce " or " commercial " and " trade " to the purchase and sale or exchange of goods and commodities, but said that they might nevertheless connote as well other occupations and other organized forms of business enterprise which might not necessarily involve trading in merchandise. The Court observed further that the terms " trade " and " commerce ", when used in conjunction with each other and with the grant of authority to lease land for " commercial purposes were sufficient to include the operation of a hospital as a business undertaking, and that, moreover the words " to do anything generally incident to or necessary for trade " would remove all possibilities of doubt as to the meaning of the Article. The Court pointed out also that no contrary evidence could be found from the negotiations leading up to the signing of the Treaty, and that evidence on the basis of which the same provision, in Terrace v. Thompson, was deemed not to include agricultural purposes could not be used to exclude the operation of a hospital, because that evidence dealt specifically with leasing land for agricultural purposes. Thus the Court again reached its conclusion from deductions drawn from the comprehensive terms of the Article, and from the absence of evidence to the contrary. The reference to " liberal construction " again did not seem necessary to, although it was confirmatory of, the Court's conclusion.

THE

"RULE

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175

NIELSEN V. J O H N S O N

In the case of Nielsen v. Johnson42 the Supreme Court of the United States was interpreting the 7th Article of the Treaty with Denmark of 1826/* which read as follows: The United States and His Danish Majesty mutually agree, that no higher or other duties, charges, or taxes of any kind, shall be levied in the territories or dominions of either Party, upon any personal property, money or effects, of their respective citizens or subjects, on the removal of the same from their territories or dominions reciprocally, either upon the inheritance of such property, money, or effects, or otherwise, than are or shall be payable in each State, upon the same, when removed by a citizen or subject of such State respectively. The issue was whether a discriminatory tax against aliens on inheritance of property of American citizens, which as contended by the petitioner was neither a tax upon property of an alien nor levied on the removal of such alien property, but a tax on the succession to property of deceased American citizens,44 if applied to Danish subjects, was contrary to the provisions of the 7th Article of the Treaty. The Court first referred to the " familiar rule " that " treaties are to be liberally construed so as to effect the apparent intention of the parties." It resorted then to the history of the Article and to diplomatic exchanges referring to its provisions. It found that the first draft of the convention proposed by the Danish Minister contained no provisions corresponding to Article 7 ; that meanwhile certain American citizens addressed Secretary Clay, complaining of certain taxes imposed by the Danish Government with respect to property of American "279

U. S. 47, decided in 1928.

« 1 Malloy 1826. **Cf. Petersen v. Iowa, 245 U. S. 170; decided in 1917; v. Louisiana, 23 How. 445, decided in 1859.

Frederickson

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citizens, located in the Danish West Indies, as a prerequisite to the removal of such property from the islands, and asking that an article be inserted in the Treaty then contemplated with Denmark forbidding the imposition of taxes of this kind; that a note sent by Mr. Clay to the Danish Minister suggested that " when citizens or subjects of the one Party die in the country of the other, their estates shall not be subject to any droit de detraction but shall pass to their successors free from all duty " ; that the Danish Minister in his reply referred to " the additional article to the late convention between Denmark and Great Britain respecting the mutual abolition of the droit de detraction " the phraseology of which was found to be substantially the same as that of the 7th Article of the Treaty under interpretation; and that, following ratification of the Treaty, Mr. G a y declared that the object of the 7th Article was to remove the taxes imposed upon American citizens on Danish West Indies and that the Danish Minister agreed to secure due execution of the 7th Article with respect to those taxes.45 The Court said that the present discriminatory tax was the substantial equivalent of the droit de detraction which it was the purpose of the Parties to prohibit, and that the diplomatic correspondence preceding and subsequent to the execution of the Treaty left little doubt that the Parties sought to relieve the citizens of each country within the other and to enable them to dispose of such property, paying only such duties as were exacted of the inhabitants of the place of its situs. Thus extrinsic evidence furnished decisive proof that the imposition of the discriminatory tax in question on Danish subjects was directly contrary to the design of the Contracting Parties. The reference made by the Court to " liberal construction " to confirm this conclusion seems superfluous. 48

279 U. S. 47, 52-53-

THE " RULE

OF LIBERAL

CONSTRUCTION

"

TODOK V. UNION STATE BANK OF HARVARD

The question involved in this case 48 was whether the word " goods " used in the treaties between the United States and Sweden and Norway embraced real property. Article 6 of the Treaty with Sweden of April 3, 1 7 8 3 / ' revived by the Treaty with Sweden and Norway of September 4, 1 8 1 6 48 which was replaced by the Treaty with Sweden and Norway of July 4, 1827, provided: 49 The subjects of the Contracting Parties in the respective states may freely dispose of their goods and effects, either by testament, donation or otherwise in favor of such persons as they think proper. This provision was kept in later treaties. The official text of the present treaty was in English and the English word " goods " did not seem to embrace real property; but as the original text of the Treaty of 1783 with Sweden was in French only, Mr. Chief Justice Hughes said in the course of the opinion of the Court that " the French text is therefore controlling." 50 The French phrase corresponding to the English " goods and effects " was " fonds et biens ". The French word " biens " seemed to have a wider meaning than the English word " goods " and to include real property. The English text now in force was translated from the original French text and, according to the Court, was designed to mean the same thing. In reaching this conclusion the Court also adverted to the note addressed by the Swedish Minister at Washington to the Department of State, on 281 U. S. 449, decided in 1929. 4T

2 Malloy 1725.

48

Ibid., p. 1742.

«Ibid., p. 1748. »« 281 U. S. 449, 454-

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December 12, 1910, wherein he said that it was his knowledge that the Swedish Government always understood that the words " goods and effects " used in the various treaties included real estate.51 On the basis of such external evidence the Court decided that the word " goods " covered real estate. Although in the course of its opinion the Court also referred to the " familiar rule of liberal construction ", such a reference did not seem essential to the Court's decision.52 A study of the cases decided by the Supreme Court of the United States in which the so-called " familiar rule of liberal construction" was referred to by the Tribunal leads to the conclusion that the Court's reference to " liberal construction " was due to the implied design of the contracting parties to carry out their treaty obligations in the best of faith. This encouraged a liberal construction of obligations in respect to a variety of concessions when there was no evidence of an opposing design and when the bare text offered no decisive guidance. In the cases noted, the Court, according to its own reasoning, was not, however, obliged to invoke such a rule in support of its conclusions. Evidence internal or external to the treaty was in each case sufficient to prove the design of the contracting parties. Thus, in Shanks vDupont and in Hauenstein v. Lynham the conclusions of the Court were drawn from the clear texts and from external circumstances. In Geofroy v. Riggs the decision of the 51 82

Ibid., p. 454.

See also Wright v. Henkel, 190 U. S. 40, 57, decided in 1902; Olsson v. Savage, 240 Pac. 586, decided in 1925; Maltass v. Maltass, 1 Rob. Ecc. 67, decided in 1844. See also the position taken by the Department of State in 1924 in the case of Cheung Sum Shee v. Nagle, 268 U. S. 336. Cf. the attitude of the Supreme Court in Ubeda v. Zialcila, 1912, 226 U. S. 452, where good faith of the Parties was assumed not to protect fraud, because the Treaty "cannot be supposed to have intended" to contravene common morality and fairness.

THE " RULE OF LIBERAL

CONSTRUCTION

"

Court rested chiefly on the obvious purpose of the Treaty in question. In In re Ross the object sought to be effected by the Treaty and practices traditionally followed by nations in regard to the subject-matter in question led to the conclusion adopted by the Court. In Asakura v. Seattle and in Jordan v. Tashiro the comprehensive terms used in the Article were decisive in the absence of evidence to the contrary. In Nielsen v. Johnson evidence furnished by prior negotiations and contemporary declarations left no doubt as to the design of the Contracting Parties. In Todok v. Union State Bank of Harvard the language used in the original draft and evidence furnished by diplomatic correspondence were sufficient to lead to the Court's conclusion. In Terrace v. Thompson the Court definitely rejected the argument in favor of a " liberal construction " because of the existence of evidence to the contrary. Even in Tucker v. Alexandroff where the views of the majority might have been influenced by the belief that the Treaty should be observed with the most scrupulous good faith, the decision seemed to rest principally on practices of nations in regard to the subject-matter dealt with in the Treaty. Where the sense in which the contracting parties employed the terms of their choice had been proven by the evidence, and where a " liberal construction " was confirmatory of this conclusion, the Court did not hesitate to refer to this " familiar rule " for the purpose of answering such arguments as had been raised by one of the litigating parties in favor of restricting the terms in dispute to their literal, or sometimes technical, or particular meaning not supported by evidence produced during the course of adjudication. The Court, however, never made any allusion to or use of this " familiar rule " when there was evidence to the contrary. This is clearly illustrated by the case of Terrace v. Thompson. There seems to be, therefore, no conflict between the position adopted

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by the Supreme Court of the United States in regard to this " familiar rule of liberal construction " and the statement made by the Permanent Court of International Justice in the case of the Polish Mail Serinee in Damig, to the effect that the rules as to a strict or liberal interpretation of treaty stipulations were to be applied only in cases where ordinary methods of interpretation had failed.58 Neither Court seems 53

Pub. P. C. I. J. ( A / B ) , No. 15, p. 39. See also supra, p. . It might be interesting to compare in this connection the views expressed by the German Reicksgericht (the German Supreme Court at Leipzig) in regard to " strict interpretation " of certain treaties. Article VII of the Treaty between Great Britain and Germany, for the Mutual Surrender of Fugitive Criminals, signed at London, June 11, 1872, (62 British and Foreign State Papers 5) provided: " A person surrendered can in no case be kept in prison, or be brought to trial in the State to which the surrender has been made, for any other crime or on account of any other matters than those for which the extradition shall have taken place. " This stipulation does not apply to crimes committed after the extradition." In interpreting this Article the Court said: " Die Bestimmung ist völlig klar und unzweideutig. Ihr Wortlaut und der Gegensatz zwischen dem ersten und zweiten Satze lassen keinen Zweifel darüber, dass sie die Strafverfolgung der ausgelieferten Person wegen jeder strafbaren Handlung untersagt, welche vor der Auslieferung verübt und wegen welcher die Auslieferung nicht erfolgt ist." The Court adverted also to the provisions of similar treaties and to practical constructions by the Parties and found its conclusion strengthened. But it said in addition: " Die strikte Auslegung des Art. 7, ist durch die internationale Natur des Vertrages geboten." It observed that such a " strict interpretation" was also in harmony with the German judicial practices in dealing with criminal matters. (12 RGSt. 381). This reference to "strict interpretation", although it might confirm the conclusion of the Court, was not necessary, because the Court itself had already proven from evidence available the design of the Contracting Parties. See also other decisions of the Court, especially, 29 RGSt. 270, 30 RGSt. 440, 31 RGSt. 428, 32 RGSt. 425, 45 RGSt. 271, and 54 RGSt. 108.

THE "RULE

OF LIBERAL

CONSTRUCTION"

181

to have actually applied a " liberal construction " in disregard of other methods of interpretation available or in the face of evidence to the contrary. The Supreme Court of the United States has, however, in contrast to the Permanent Court of International Justice referred to a supposed rule of liberal construction with frequency and persistence. In so doing it has produced the impression that it feels itself bound by a canon of construction that a close scrutiny of its reasoning in the several adjudicated cases fails to support. For that reason it may be doubted whether the recurrence of the dictum, despite the lofty purpose that is responsible for it, offers a real guidance in the interpretation of treaties.

CHAPTER

VIII

CONCLUSION

JUDICIAL experiences in treaty interpretation on the whole reflect a general trend leading to the conclusion that the function of the interpreter is simply to discover and ascertain, with the aid of various sources of evidence, the sense in which the contracting parties actually employed particular terms in a treaty. Once that significance which the parties mutually understood, consented to, and understood that they had consented to, is discovered, the function of treaty interpretation is completely fulfilled. While occasional pronouncements of tribunals in regard to canons or rules of construction might seemingly lead to perplexity and confusion, a careful study of the foregoing cases, and of the issues involved in each, and of how they were approached and decided, leads to the simple conclusion stated. In the process of discovering the significance attached by the parties to the terms of a treaty, tribunals may find it convenient or useful to resort to certain kinds of evidence, yet rarely has the door been closed to the introduction of other evidence probative of the actual design of the contracting parties. The conclusion of a tribunal is frequently the result of examination of all pertinent and probative considerations. Evidence is drawn from a variety of sources, such as the character of the language employed, historical facts relating to the subject-matter in question, kindred arrangements showing the practice of nations in using like terms in other agreements, the general purpose as deduced from the various aspects of the instrument as a whole, comparisons and contrasts drawn from other parts of the treaty or related agree182

CONCLUSION

183

ments, prior negotiations, contemporary declarations, as well as practical constructions by the parties. Where the language of an article, from its natural meaning, seems to be clear, that is, to point to the design of the parties, there is a tendency on the part of tribunals to accept the language as probative of that design. This is notably true when such a conclusion is fortified by other considerations internal or external to the treaty. When, however, it is established by appropriate and sufficient evidence that the parties have employed terms in a sense other than their natural meaning, tribunals rarely hesitate to accept the fact as decisive. In cases where the language of an article appears on its face to be doubtful, tribunals commonly seek the aid of everything that is probative of actual design. The influence upon their minds of various considerations may be considerable, such as general principles governing the subject-matter in question, or practices traditionally followed by the parties in regard to it. By this process, expressions otherwise obscure or ambiguous, frequently are found to reveal an endeavor on the part of the contracting parties to take a well-defined position. When that design of the parties, restrictive or otherwise, is thus ascertained, tribunals will be inclined to yield to no argument in favor of an interpretation that points in an opposite direction. When the evidence manifests a broad design on the part of the contracting parties to achieve a particular end, tribunals are generally reluctant to accept any construction of a particular article which would render abortive the achievement of that end, and thus serve to thwart the object of the treaty. But if there is specific evidence indicating that the parties have sought to restrict the operation of the treaty in certain particular aspects, despite its seemingly broad scope, tribunals have intimated that they would follow what the evidence revealed.

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TRIBUNALS

The admissibility of evidence of prior negotiations has received much prominence in the discussions of litigating parties before tribunals. A careful examination of the cases reveals, however, the fact that such evidence has frequently been offered in cases where preparatory work would merely confirm the deductions drawn from the text. Noting the frequent absence of any real conflict between evidence furnished by preparatory work and deductions drawn from the text, tribunals oftentimes declare it to be unnecessary to resort to such work in such cases. Such pronouncements, however, occasionally take the form of a dictum to the effect that the preparatory work should not be used for the purpose of changing the clear meaning of the text, although the tribunal so expressing itself may have observed that there is no real conflict between the preparatory work and the text. A dictum made under such circumstances seems to be of little practical value in serving as a guide for the interpreter in cases where a real conflict exists. This is especially true where preparatory work offers decisive proof as to the actual design of the contracting parties, contrary to what a mere analysis of the text seems to lead to. Moreover, tribunals have usually admitted and considered such evidence regardless of whether the text appeared to be clear or otherwise. In cases where two equally authoritative languages constitute the text of a treaty, tribunals are obliged to resort to various forms of evidence with a view to finding out the actual design of the contracting parties. Where the evidence does not lead to any definite conclusion, the courts incline to any construction that harmonizes with both versions; and this they accept as expressive of the common design of the contracting parties. Where evidence shows that one of the languages has been used in the negotiations and drafts and that the other is a mere translation, tribunals not infrequently declare the former language to be basic and decisive of the

CONCLUSION

185

court's interpretation. But the impressive fact in some of the cases above noted has been the circumstance that the tribunal found in the narrower of two versions, a sufficient breadth or scope to cover what was claimed thereunder. This fact removed from judicial consideration any issue whether a party might claim benefits not purporting to be granted by one text, although yielded by the other. The " familiar rule of liberal construction " frequently referred to by the Supreme Court of the United States seems to mean little more than that treaties should be interpreted in the utmost good faith. This " rule of liberal construction " is, however, usually invoked by that Court to supplement deductions already drawn from internal or external evidence, and it has never been resorted to where the evidence established an opposing design. The Permanent Court of International Justice has made few, if any, new rules in treaty interpretation. A careful study of the cases involving treaty interpretation shows that the methods of interpretation applied by that Tribunal have been frequently used by other tribunals since the J a y Treaty of 1794. In short, with the function of treaty interpretation properly understood, the whole problem becomes a question of evidence, the presentation of which calls for and also permits the simplest methods of proof. This conclusion seems surprisingly simple, especially, when it is compared with the numerous so-called " canons of construction " advocated by Vattel and other publicists, to which reference has been frequently made by litigating parties, and occasionally by tribunals in dicta. The records of the several cases, embracing the opinions of the tribunals, in the light of the issues involved in each case, leave, however, no room for any other conclusion than that here announced.

BIBLIOGRAPHY SELECTED A R T I C L E S , B O O K S , AND D O C U M E N T S R E L A T I N G TO JUDICIAL INTERPRETATION OF T R E A T I E S

(Those

already contained in the List of Abbreviations not included here) (A)

are

ARTICLES

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INDEX ( S E E ALSO T A B L E OF C

A Act of the Congress of Vienna, the, 64 Acts of unsuccessful insurgents, 45 Agreement of Athens between Greece and Turkey, the, 1926, 80 Agreement of Washington between Great Britain and the United States, the, 1910, 40, 52 Agreement of Warsaw, the, 1921,33 Agricultural purposes, 133, 134,171, 172, 174 Agriculture, persons employed in, 84, 95. Mi Alaskan Boundary Tribunal, the, 128 " A l l States of the Union", 163, 164, 165 Allied and Associated Powers, the, 28, 49, So, 84, 108, 109, 110, 112, 123, 129, 149 Allied Powers, the Principal, 23 Allied reply, the, 51 " Americans ", 165 American and British Arbitration Tribunal, the, 40, 52 Anglo-German Mixed Arbitral Tribunal, the, 49 Anzilotti, Judge, 25, 117, 118, 119 Asylum, country of, 72, 73 B Baldwin, Justice, 154 Bowen, Venezuelan Representative, 46 " British subjects ", 159, 160, 161 British-Venezuelan Mixed Claims Commission, the, 45 Bruce, Sir Frederick, 66, 67 Bryan, Secretary, 134, 171 C " Cannot", the term, 43, 44 Canons, classical, of construction, 19, 21

ES A N D B I B L I O G R A P H Y )

Castro, President of Venezuela, 46 Central American Court of Justice, the, 8s, 89 Chinda, Viscount, 134, 171 Civil Tribunal of Strasbourg, the, IS6 " Claims the term, 48, 65, 66 Clay, Secretary, 176 Clear implication, 48 Clear meaning, 22, 23, 25, 27, 29, 37, 39. 40, 42, 51. 56, 58, 59, 60, 140, 184 Clear text, 99, 101, 105, i n , 114, 118, 119, 120, 184 Common law, 20 " Communities", the Greco-Bulgarian, 82 Conference of Ambassadors, the, no Conference of Lausanne, the, 1923, 97 Constantinople, the City of, 30 Contraband, 23 Convention: the Consular, of 1853 with France, 163; the, of 1818 with Great Britain, 40, 54; the, of 1857 with Japan, 165; the, of Lausanne, 1923, 30, 99, 100; the, of 1922 between Germany and Poland, 78; the, of Paris between Poland and Danzig, 1920, 33, 109, n o , i n ; the Labor, of Washington, 1919, 115, 116, 117, 119 Conventional international fluvial law, 63, 65 Conventions relating to the Suez and Panama Canals, 26 Council of the League of Nations, the, 30, 35, 36, 97, 98, 112, 113 Covenant of the League of Nations, the, Article 14, 112; Article 15, paragraph 8, 143, 144 Curzon, Lord, 97, 98 193

194

INDEX

D Danzig, the Free City of, 33, 34, 39, 109, i n ; the Port of, 33, 34, 39 Definitive Statute of the European Commission of the Danube, the, 102, 104, 105, 106 " Desertion from the ships of w a r " , 167, 169 Dictum, dicta, 21, 99, 120, 140, 181, 184 " Differential war measures ", 124 District of Columbia, the, 164, 165 Domicile, 31, 92, 93. Doubtful texts, 61, 74 Droit de ditraction, 176 "Established", "Établissement", 30, 31, 32, 148 Evidence: absense of, to the contrary, 161, 174, 179; external or extrinsic, 22, 27, 36, 37, 39, 40, 47. 49. Si. 52, 54, 58, 59. 74, 94, 119, 132, 148, 153, 155. 157, 163, 170, 176, 177, 178; internal or intrinsic, 64, 91, 124, 148, 154, 155. 163, 170 " Exceptional war measures ", 124 Extradition, 72 "Fonds et biens", 177 Fraud, 178 French Courts of Cassation, 159 French law, 20 French-Venezuelan Mixed Claims Commission, the, 48 Fuller, Chief Justice, 169 German Neutrality Order, the, of July 25, 1920, 23 German observations, the, 49, 51 General Claims Commission between the United States and Mexico, the, 125, 130 Good faith, 169, 174, 185 Gore, Commissioner, 44, 45, 88 Gray, Justice, 169 Greco-Bulgarian Mixed Arbitral Tribunal, the, 81 Grotius, 19

H Harlan, Justice, 169 Hines, Arbitrator, 129 Historical facts, 105 History of a treaty, the, 130, 136 Hogg, Sir Douglas, 98 Huber, Judge, 25 Hughes, Chief Justice, 177 Hurst, Sir Cecil, H I Hyde, 19, 120 I Implied design, 178 " Industry and industrial ", 141, 142, 143 International Commission of the River Oder, the, 62 International Labor Organization, the, 76, 77, 84, 95, 96, 97, 141 International law, 38, 72, 100, 101, 143, 144 " Intervene ", the right to, by a consul in the administration of estate of a deceased alien, 71, 72 Italian Civil Code, the, 152 Italian-Venezuelan Mixed Claims Commission, the, 46, 151

J Jay Treaty, the, 185 Judiciary Act of 1789, the, 58, 163 K Kiel Canal, the, 23, 25 Kindred arrangements, 69, 182 Klotz, M., 123 L Language, character of, 183 ; of the grantor, 154; the simple, 128 Languages, two differing, of equal authority, 141, 148, 157, 184 Liberal construction, 159, 162, 163, 164, 165, 166, 173, 174, 175, 176, 178, 179, 181, 185 Liberal exposition, 160, 161 Liberal interpretation, 34, 168, 170, 171, 172, 180 Literal construction, 138 Literal meaning, 129, 179 Little, Commissioner, 65, 66 Logan, Arbitrator, 128 Louis XIV, the Marine Ordinances of, 168

INDEX M M'lean, Justice, 155 Mandate for Palestine, the, 88, 145 Marshall, Chief Justice, 155 Minorities, 28, 29, 38, 82, 83, 84, 85 Mixed Gaim Commission between the United States and Germany, the, 47, 149 Moore, Judge, 101, 147, 148 N Nationality decrees in Tunis and Morocco, 143 Natural meaning, "sens naturel", 22, 28, 31, 32. 38, 39, 107, " 5 , 117, 118, 119 " Naval and military materials ", 149, ISO, 151 Nielsen, American agent, S3, 125 O Ordinary sense, 34, 35 Parker, Umpire, 47 Peace Treaty of 1783, the, 138, 160 Permanent Court of Arbitration, the, 54, 125 Permanent Court of International Justice, the, 23, 27, 30, 33, 35. 39. 59. 62, 65, 67, 75, 76, 78, 80, 82, 95, 99, 102, 106, 108, 112, 115, 120, 141, 145, 148, 180, 181, 185 Pinkney, Commissioner, 42, 43, 45 Plain meaning, 106, 120 Plain terms, 24 Plumley, Umpire, 46, 48 Political Department of the Government, the, 73, 74 Preamble of a treaty, the, 76, 77, 82, 84, 85, 88, 90, 94, 96. 115. 138 Precedents in international practice, 28, 29 Preparatory work, 95, 96, 97, 99, 100, 101, 102, 105, 106, 107, 108, i n , 113, 114, 116, 117, 119. '21, 122, 123, 139, 140, 184 Prior negotiations, 46, 48, 53, 126, 127, 129, 133, 138, 139, 140, 183, 184 Protocol of 1903, the, between Venezuela on the one side and Great Britain, Germany, and

Italy on the 152 Purpose of a 79, 82, 84, 94, 138, 164,

195 other, 45, 47, 68, 70, treaty, the, 76, 78, 85, 87, 90, 91. 93, 165, 182

" Raison d'etre ", 24 Ralston, Umpire, 46, 48, 88, 151 Reichesgericht, German, 180 Restrictive interpretation, 24, 27, 60, 65, 75, 183 River Danube, 65, 102, 103, 105 River Elbe, 62, 129, 130 River Oder, 62, 106 River St. Croix, 128 Roumanian-German Mixed Arbitral Tribunal, pie, 123 Roumanian-Turkish Mixed Arbitral Tribunal, the, 120 Seward, Secretary, 132 Sovereign rights, limitation of, 24, 40, 60 Statute of the Memel Territory, the, 85, 122 Strict interpretation, 34, 35, 180 Sumner, Lord, 123 Supreme Court of Maine, the, 137 Supreme Court of the United States, the, 56, 59, 70, 71, 72, 73. 89. 91, 131, 133. 135. 137, 153, 155. 159. 163, 165, 167, 172, 175, 178, 180, 181, 185 " T r a d e " , 133, 134, 171, 172, 173, 174 " Travaux préparatoires ", see preparatory work Treaty : the Extradition, with Italy, 1884, 72 ; the, of Alliance between Chile and Peru, 128; the, of Berlin, 1921, 47, 48, 149; the, of Bucharest, 30 ; the, of Cession between the United States and Spain, 153, 155; the, of Ghent, 123; the, of Lausanne, 35, 97, 101, iai ; the, of London, 1883, 104; the, of Neuilly, 37, 82; the, of Paris between Poland and Danzig, 33, 34; the, of Peace of the Central American States, 85 ; the, of Peace, 1783, 138, 160

196

INDEX

Treaty of Versailles, the: Articles 29-32, 33; Article 104(2), 39; Article 104(5), 109. n o , i n ; Article 232, 150, 151 ; Article 297(e), 123, 124; Articles 299305, 49. So; Article 310, 49, So, 51 ; Article 311, 156; Article 331, 62, 130; Article 339, 129, 130; Article 347, 103; Article 363, 130; Article 380, 23, 24, 25, 26; Article 424, 114 ; Article 426, 114 ; Article 427, 77 ; Article 440, 142; Part VII, 50; Part V I I I , 123, 124; Part X, 123; Part XII, 24; Part X I I I , 77. 78, 84, 95, 96. 114, 116, 118, T4I, 142, 148 Treaty, the: of 1783 with Sweden, 177 ; of 1794 with Great Britain, 42; of 1818 with Great Britain, 41, 54; of 1826 with Denmark, 175; of 1832 with Russia, 167, 169; of 1842 with Great Britain,

137; of 1850 with the Swiss Confederation, 56, 161; of 1853 with the Argentine Republic, 70; of 1856 with Persia, 91; of 1867 with Russia, 131, 132; of 1878 with Italy, 70; of 1880 with China, 73; of 1910 with Sweden, 91; of 1911 with Japan, 133, 170, 172, 173; of 1924 with Great Britain, 89, 135 U "Uberrima

fides",

168

V Vattel, 19, 185 Volition of parties, 21 W White, Chief Justice, 48 Wigmore, 20, 21