The Interpretation of Treaties 9780231894753

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STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW EDITED BY T H E FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY

Number 294

THE INTERPRETATION OF TREATIES

Sa MARIA A. GANIGUER

PREFACE As a birthday present from a friend the author once received a beautiful book, on the front page of which the following message was autographed as a word of encouragement and a token of regard: " If you want a bed of roses, plant rose-bushes." Pondering over the sense of such a well-chosen verse, he could not but reflect upon the problem of interpretation, which had interested him profoundly in his study of international law. Obviously the expression is a figure of speech, having nothing to do with roses and rose-bushes as the botanists or florists commonly understand them to be. It has a special connotation other than the literal meaning; it calls for the task of interpretation. Similarly, in the contractual stipulations between states, words and sentences are often used in a sense other than and extrinsic to the ordinary descriptions imputed by dictionaries and grammars. What is more, the moral technique of old European diplomacy, with its jungle of finesse and obliquities, often ascribes so much " neo-Latin calculation " that even the most experienced negotiators of international agreements must needs be mindful of the seriousness of Bismarck's cynical remark that he always told the truth because none believed it. Such being the case, international ills— wars and injustices—frequently become an inevitable harvest of the crop of treaty contentions; and diplomats are at times coerced into the intricacies and intrigues of treatymaking, as well as treaty-interpreting, by virtue of the sheer prevalence of dogmatic rules from the books of bygone publicists and on account of the lack of scientific search for the true principles of interpretation. 7

8

PREFACE

This study, therefore, is undertaken with the hope and aspiration of approaching the problem of treaty interpretation along the scientific road such as that paved by the new school of interpretation—free from the " primitive formalism." Particularly does the author take delight in attempting the task inasmuch as the closeness of relationship between the topic under investigation and the field of his anticipated service to his country accords him a profound incentive without which indeed the ensuing pages would not have been possible. In taking leave of an enterprise which has beguiled many days of their weariness—which has accorded, to a certain measure, an abatement of the sadness of many others—it behooves the author to confess that no one can be more conscious than himself of the weight placed upon his inexperienced shoulders in tackling the problem; and yet just in proportion to his realization of the effect which his conclusions may entail, is his sense of responsibility in analyzing facts and examining court decisions with utmost care. While words are inadequate to express his unbounded gratitude to Professor Charles Cheney Hyde for constant encouragement and inspiration, the author deems it his duty to state that he, himself, is alone responsible for the utterances, whether of fact or of opinion, in this volume. JAMES T . C. Y U . N E W YORK C I T Y , M A R C H 26, 1 9 2 7 .

CONTENTS l'An E

PREFACE

.

7

T A B L E OF C O N T E N T S

9

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

.

L I S T OF A B B R E V I A T I O N S

11 21

C H A P T E R

I

INTRODUCTION

1. 2. 3. 4.

A c h a l l e n g e to the old school T r e a t y interpretation and international peace T r e a t y interpretation and international justice P u r p o s e of the i n v e s t i g a t i o n C H A P T E R

27 30 32 37

II

T H E N A T U R E OF THE P R O B L E M

1. 2. 3. 4. 5. 6. 7.

Introductory C o n s t a n t need of interpretation L a t i t u d e in e s t a b l i s h i n g standard D i f f e r e n c e b e t w e e n sense and v o l i t i o n F r e e d o m of s e e k i n g e v i d e n c e S p u r i o u s interpretation . Conclusion C H A P T E R T H E STANDARD OF

40 44 52 58 64 70 76 III

INTERPRETATION

1. I n t r o d u c t o r y 2. T h e L u s i t a n i a cases 3. T h e case r e l a t i n g to t h e e x t r a d i t i o n treaty of 1899 b e t w e e n the U n i t e d S t a t e s and M e x i c o 4. T h e case of the e x c h a n g e of G r e e k and T u r k i s h populations . . 5. T h e M a n i n a t arbitration case 6. T h e P a n a m a C a n a l tolls case 7. C o n c l u s i o n

9

79 85 94 100 108 116 127

IO

CONTENTS PACK

C H A P T E R T H E S O U R C E S OF

1. 2. 3. 4. 5. 6. 7. 8.

IV EVIDENCE

Introductory The S. S. Wimbledon case The Cayuga Indians case The North Atlantic coast fisheries arbitration case The Manica arbitration case The Chilean-Peruvian accounts arbitration case The Aroa mines case Conclusion

138 140 152 156 162 167 171 . 192

CHAPTER V T H E SO-CALLED R U L E S OF CONSTRUCTION AND THE DOCTRINE OF

1. 2. 3. 4. 5. 6.

Introductory The principles The principles The principles The principles Conclusion

of of of of

Uberrima Fides

203 high purpose 205 morality, fairness and protection against fraud. 207 liberality 213 international law 230 243

BIBLIOGRAPHY

248

INDEX

261

T A B L E O F CASES CITED [This table embraces not only cases decided by judicial bodies, but also those involved in diplomatic disputes. References are to pages. Principal cases are in italics.] FACE

Adams v. Akerlund (168 111. 632) 130 v. Tanner (244 U. S. 590) 225 Administrative Decision No. I of the Mixed Claims Commission (M. C. C. [U. S. & Ger.], p. 1) 86 Administrative Decision No. II of the Mixed Gaims Commission (M. C. C. [U. S. & Ger.], p. 5) 86-88, 201 Administrative Decision No. V of the Mixed Claims Commission (M. C. C. [U. S. & Ger.], p. 145) 200 Administrative Decision No. VII of the Mixed Gaims Commission (M. C. C. [U. S. & Ger.], p. 273) 130 Ainsworth v. Munoskong Hunting and Fishing Club (123 N. W. 802) 82 Alabama Claims, The (1 Moore Arb. 495, 610) 129 Alaskan Boundary Case, The (S. Doc., No. 162, 58th Cong., 2nd Sess., i) I9S-I97 Alsop Case, The (5 Am. J. Int. L. 1079) *93 Alvarez y Sanchez v. United States (216 U. S. 167) 82 Amiable Isabella, The (6 Wheat 1) 59, 81 Anciara Case, The (3 Moore Arb. 3006) 191 Anchor Line v. Aldridge (280 Fed. 870) 82 Anderson v. Lewis (1 Free. Ch. 178) 81 v. Watt (138 U. S. 694) 210, 212 Anderson's Estate, In re (147 N. W . 1098) 82 Antiochus Case, The (Vattel, The Law of Nations, bk. ii, ch. xv, sec. 233) 34 Antoine Fabiani Case, The (Ralston, Reports of French-Venezuelan Mixed Claims Commission of 1902, p. 81) 135 Aroa Mines Case, The (Ralston, Venezuelan Arbitrations of 1903, P- 344) 80, 171-192, 199, 240 Arthur Sewall & Company et al. v. Germany (M. C. C. [U. S. & Ger.], p. 674; 20 Am. J. I n t L. 601) 244 Asakura v. Seattle (265 U. S. 332) 204, 220, 224-226, 227 Aspdin v. Austin (5 Ad. & El.) 60 11

12

TABLE

OF CASES

CITED PAGE

Aspinwall Case, The (4 Moore Arb. 3616) Austin v. Tennessee (179 U. S. 343) Baker v. City of Portland (5 Sawy. 566) Ban Righ, The (Ralston, Venezuelan Arbitrations of 1903, p. 361) 179, Barney v. Baltimore (6 Wall. 287) Bartram r. Robertson (15 Fed. 212) Betsey, The (3 Moore Arb. 3180) Blight v. Rochester (7 Wheat. 535) Bolchos v. Three Negro Slaves (Bee Adm. 74) Bondi v. Mackay (87 Vt. 271) Borgmeyer v. Idler (159 U. S. 408) Bradley v. Steam Packet Co. (13 P e t 89) Brawley v. United States (96 U. S. 168) British Consul v. Ship " Mermaid " (Bee Adm. 69) Brown v. Byrne (3 E. & B. 703) v. Daly's Estate (154 N. W. 602) v. Peterson (170 N. W. 444)

193 225 81 180 215 81 231 81 81 82 81 65 200 81 56 82 82

Cameroon Septic Tank Co. v. Knoxville (227 U. S. 39) 200 Cargill Co. v. Minnesota (180 U. S. 452) 225 Carneal v. Banks (10 Wheat 182) 58 Castro v. De Uriarte (16 Fed. 93) 81 Cayuga Indians Case, The (American and British Claims Arbitration Tribunal, Claim No. 6; Nielsen, Report of American and British Claims Arbitration, pp. 203-331) 50-52, 152-156, 194 Chambers v. State (25 Tex. 307) 68 Champagne Case, The (U. S. For. Rel., 1907, p. 508) 99 Charlotte, The (5 Rob. 305) 81 Chase National Bank v. Faurot (149 N. Y. 532) 225 Cherokee Nation v. Georgia (5 P e t 1) 71 Cheung Sum Shee v. Nagle (268 U. S. 336) 209-213 Chew Heong v. United States (112 U. S. 536) 211 Chicago, Rock Island & Pacific Railway Co. v. McGlinn (114 U. S. 542) 232 Chilean-Peruvian Accounts Arbitration Case, The (2 Moore Arb. 2085) 167-171, 197 Choctaw Nation v. United States (119 U. S. 1) 59 Chryssikos v. Demarco (107 A. 358) 82 Chung Fook v. White (264 U. S. 443) 210 Chung Toy Ho, In re (42 Fed. 398) 212 Clark Distilling Co. v. Western Maryland Ry. Co. (242 U. S. 311) 225

TABLE

OF CASES

CITED

13 PAGE

Clayton-Bulwer Treaty between the United States and Great Britain, The Case Relating to the (3 Moore Dig. 136) 197-199 Colby v. Dean (70 N. H. 591) 225 Colon Incident, The Ralston, Venezuelan Arbitrations of 1903, P- 373) 190 Colpoys v. Colpoys (Jac. 451) 65 Cotnegys v. Vasse (1 Pet. 193) 81 210 Commissioner of Immigration v. Gottlieb (265 U. S. 310) Commonwealth v. Marshall (69 Penn. St. 328) 68 Convention of 1818 between the United States and Great Britain, The Case Relating to the (S. Doc., No. 870, 61st Cong., 3rd Sess.) 194-195 Cornelius v. City of Seattle (213 P. 17) 82 Crossman Case, The (Ralston, Venezuelan Arbitrations of 1903, P- 298) 177 Crothers Case, The (3 Moore Arb. 2977) 191 Crowley v. Christensen (137 U. S. 86) 225 Cuban Insurgents Case, The (3 Moore Arb. 2982) 191 Cumming Case, The. See Thomas Cumming Case Daniel N. Pope Case, The. See Pope Case De Biasi v. Normandy Water Co. (228 Fed. 234) 8a de Lemos Case, The (Ralston, Venezuelan Arbitrations of 1903, 176, 177 p. 310) Denny v. Bridges (19 Wash. 44) 225 Diamond Rings Case, The. See Fourteen Diamond Rings v. United States. Diana, The (5 Rob. 60, 67) 81 Dobrin v. Mallory S. S. Co. (298 Fed. 349) 82 Doe v. Benson (4 B. & Aid. 588) 65 v. Chichester (4 Dow. 65) 65 Doherty v. Hill (144 Mass. 468; 11 N. E. 581) 65 Downes v. Bidwell (182 U. S. 244) 81 Dunkirk Case, The (Wildman, Institutes of International Law, vol. i, p. 112) 34-35 Duus v. Brown (245 U. S. 176) 82 Eastern Extension, Australasia and China Telegraph Co. v. United States (251 U. S. 355) 82 Eighteen Packages of Dental Instruments v. United States (242 U. S. 617) 82 Eliza Ann, The (1 Dod. 244) 81 Elphinstone v. Bedrecchund (2 Knapp, 340) 81 Eisner Bros. v. Hawkins ( 1 1 3 Va. 47) 225

14

TABLE

OF CASES

CITED PAGE

Erickson v. Carlson (145 N. W. 352) 82 Exchange of Greek and Turkish Populations, The Case Relating to the (Pub. P. C. I. J. [B], No. 10) 100-108, 130-131 Extradition Treaty of 1899 between the United States and Mexico, The Case Relating to the (U. S. For. Rel., 1908, p. 594; 1910, p. 73i) 94-ioo, 129-130 Fama, The (5 Rob. 106) 81 Finnegan v. Knights of Labor Bldg. Assn. (52 Minn. 239) 225 Fischer v. Sklenar (163 N. W. 861) 82 Fonnereau v. Poyntz (1 Bro. C. C. 472) 65 Ford v. United States (47 Sup. Ct. 531) 60, 82 Foster v. Nielson (2 Pet. 253) 81 Fourteen Diamond Rings v. United States (183 U. S. 176) 81, 199 Fox v. Southack (12 Mass. 143) 81 Frances Louise, The (1 Fed. [2d], 1004) 82 Fransca v. City Coal Co. (116 A. 189) 82 Frelinghuysen v. United States ( n o U. S. 63) 81 French Company of Venezuelan Railroads Case, The (Ralston, Reports of French-Venezuelan Mixed Claims Commission of 1902, P- 367) 135 Frontier between Turkey and Iraq, The Case Relating to the (Pub. P. C. I. J. [B], No. 12) 133-134 Fulco v. Schuylkill Stone Co. (169 Fed. 98) 82 Gagliardi, Ex parte (284 Fed. 190) 82 Garcia v. Lee (12 Pet. 511) 81 Geofrey v. Riggs (133 U. S. 258) 204, 213-216, 217, 220, 223, 226 Gizzarelli v. Presbrey (117 A. 359) 82 Goetze v. United States (103 Fed. 72; 182 U. S. 221) 81, 222-223 Goode v. Riley (153 Mass. 585; 28 N. E. 228) 53 Goodinge v. Goodinge (1 Ves. 231) 65 Goon Dip, Ex parte (1 Fed. [2d] 811) 212 Gordon v. Kerr (1 Wash. C. C. 322) 81 Graham v. Pennsylvania Ins. Co. (1 Wash. C. C. 113) 81 Grand Rapids v. Braudy (105 Mich. 670) 225 Grossman v. Indianapolis (173 Ind. 157) 225 Guastini Case, The (Ralston, Venezuelan Arbitrations of 1903, p. 730) 173 Hamilton v. Erie R. Co. (154 N. Y. S. 1125) Hampshire v. Pierce (2 Ves. 216) Hamyltons v. Eaton (Martin, 79)

82 65 81

TABLE

OF CASES

CITED

15 PAGE

Hanna Case, The (3 Moore Arb. 2982) 191 Hartford I. M. Co. v. Cambria M. Co. (80 Mich. 491; 45 N. W. 351) 40 Hauenstein v. Lynham (100 U. S. 483) 204, 216-217, 226 Heikich Terui, Ex parte (200 P. 954) 8a Heim v. McCall (239 U. S. 175) 82 Heirs of Jean Maninat Case, The. See Maninat Arbitration Case. Henderson v. Poindexter (12 Wheat. 530) 81 Hennebique Const. Co. v. Myers (172 Fed. 869) 195 Hepburn v. Ellzey (2 Cranch, 445) 215 Hotham v. East India Company (K. B. 227) 81 Housekeeper, The Hypothetical Case of the (Lieber, Legal and Political Hermeneutics, p. 28) 49-50 Howard v. Ingersoll (17 Ala. 780) 81, 205 Hugh Divine v. Mexico (3 Moore Arb. 2980) 239 Humphrey's Adm'x v. United States (Dev. Ct. CI. sees. 678, 683, 684) 81 Hunt v. Card (31 Mass. 135) 81 Hutchinson v. Brock (11 Mass. 119) 81 Hylton v. Brown (1 Wash. C. C. 343) 81 Illinois Central Railroad Company v. The United Mexican States (G. C. C. [U. S. & Mex.], Docket No. 433) 192-193, 243-244 In Time, The (Ralston, Venezuelan Arbitrations of 1903, p. 361) . . . 179 Indiana, The (Ralston, Venezuelan Arbitrations of 1903, p. 361) .. 179 Infelise's Estate, In re (51 Mont. 18) 82 International Labor Organization, The Case Relating to the (Pub. P. C. I. J. [B], No. 2) 131 International Transit Co. v. City of Sault Ste. Marie (194 Fed. 522) 82 Jackson v. Porter (1 Paine, 457) v. Town of Union (82 Conn. 266) Jansen Case, The (3 Moore Arb. 2902) Jenks v. Langdon (21 Ohio [N. S.], 362) Johnson v. Olson (92 Kansas, 819) Jones v. Meeham (175 U. S. 1) Jost v. Jost ( i Mackey, 487)

81 225 191 68 221 59 213

Kansas Indians Case, The (5 Wall. 737) 59 Kelly Case, The (Ralston, Venezuelan Arbitrations of 1903, p. 359) 178-179 Kenton v. Baroness of Pontalba (1 Rob. 343) 81 Kinkead v. United States (150 U. S. 483) 197 Kummerow Case, The (Ralston, Venezuelan Arbitrations of 1903, P- S26) 173, 191

TABLE

OF CASES

CITED PAGE

Lau Ow Bew v. United States (144 U. S. 47) Laurie Case, The (3 Moore Arb. 2987) Lee Yee Sing, In re (85 Fed. 635) Levinson v. Boas (150 Cal. 185) Liberato v. Royer (126 A. 257) Lindo v. Rodney (Doug. K. B. 340) Little v. Watson (32 Me. 214) Lobrasciano's Estate, In re (38 Misc. Rep. 415) Lottery Case, The (188 U. S. 321) Lusitania Cases, The (M. C. C. [U. S. & Ger.], p. 17) Lutze v. City of New Orleans (237 Fed. 1018)

211 239 212 225 82 81 81 81, 231 225 85-94, 127 82

McCardle, Ex parte (7 Wall. 506) 60 McCray v. United States (195 U. S. 27) 225 McGovern v. Philadelphia (235 U. S. 389) 82 McGrady et al. v. Spain (3 Moore Arb. 2981) 239 McKeown v. Brown (149 N. W. 593) 8a M'Nair v. Ragland (1 Dev. Eq. 516) 81 Mahomet Case, The (Pufendorf, The Law of Nature and Nations, bk. v, ch. xxii, sec. iii) 34 Maiorano v. Baltimore & O. R. Co. (213 U. S. 268) 82 Mali v. Keeper of the Common Jail (120 U. S. 1) 81 Maltass v. Maltass (1 Rob. Ecc. 67) 81 Monica Arbitration Case, The (5 Moore Arb. 4985) 162-167, 195 Maninat Arbitration Case, The (Ralston, Report of FrenchVenezuelan Mixed Qaims Commission of 1902, p. 44) 57, 108-116, 132-134 Mardick Case, The. See Dunkirk Case. Maria Teresa, The (Ralston, Venezuelan Arbitrations of 1903, P- 359) 179 Marryat v. Wilson (1 Bos. & Pul. 430) 38, 81 Matthews v. Commonwealth (18 Gratt. 989) 68 Maud Thompson de Grennes Case, The (M. C. C. [U. S. & Ger.], P- 215) 129 Mavrommatis Palestine Concessions Case, The (Pub. P. C. I. J. [A], No. 2) 132-133, 135 May v. Sloan (101 U. S. 231) 225 7). Specht (1 Mich. [Man.], 187) 81 Mena Case, The (Ralston, Venezuelan Arbitrations of 1903, p. 931) 173 Meredith, In re (11 Ch. D. 739) 59 Metropolitan Railroad Co. v. District of Columbia (132 U. S. 1) . . 215 Metzger, In re (1 Barb. 248) 81

TABLE

OF CASES

CITED PAGE

Miller v. Gordon (i Taylor, 308) 81 v. The "Resolution" (Bee Adm. 404) 81 Minnesota Canal and Power Co. v. Pratt (112 N. W. 395) 82 Mithridates Case, The. See Rhadamistus Case. Molly, The (1 Dod. 394) 81 Monastery of Saint Naoum and the Albanian Frontier Case, The (Pub. P. C. I. J. [B], No. 9) 133 More v. Steinbach (127 U. S. 70) 85 Motherwell v. United States (107 Fed. 437; 48 C. C. A. 97) 204 Mugler v. Kansas (123 U. S. 623) 225 Murphy v. California (225 U. S. 623) 225 Muscat Case, The (Scott, Hague Court Reports, p. 93) 240-241 N. Y. Indians v. United States (170 U. S. 1) 59 Nationality Decrees in Tunis and Morocco, The Case Relating to the (Pub. P. C. I. J. [B], No. 4) 131-133 " Naval and Military Works or Materials," The Case Relating to the Construction of the Phrase (M. C. C. [U. S. & Ger.], p. 75) .. 243 Neck, The (138 Fed. 144) 81 New Orleans v. Winter (1 Wheat. 94) 215 North Atlantic Coast Fisheries Arbitration Case, The (S. Doc., No. 870, 61st Cong., 3rd Sess., i) 156-162, 194, 238, 242-243 Olsson v. Savage (240 P. 586) O'Reilly De Camara v. Brooke (135 Fed. 384) Orser v. Hoag (3 Hill, 59) Otis v. Parker (187 U. S. 606) Over the Top, The (5 Fed. [2d], 838)

82 81 81 225 82

Padrón Case, The (Ralston, Venezuelan Arbitrations of 1903, p. 923) 173 Panama Canal Tolls Case, The (U. S. For. Rel., 1912, pp. 467-489; 1913. PP- 540-549; 1914, PP. 317-318; S. Doc., No. 474, 63rd Cong., 2nd Sess., passim.) 116-127, 135-137 Parrott, In re (6 Sawy. 349) 81 Pastor, The (Ralston, Venezuelan Arbitrations of 1903, p. 3 6 0 ) . . . . 179 Patsone v. Commonwealth (232 U. S. 138) 81-82 Peace of Nicias, The Case Relating to the (Phillipson, The International Law and Customs of Ancient Greece and Rome, vol. i, P- 407) 31 People v. Clute (63 Barb. 356) 68 Pericles Case, The (Vattel, The Law of Nations, bk. ii, ch. xv, sec. 233) 34 Peterson's Estate, In re (151 N. W. 66) 8a

i8

TABLE

OF CASES

CITED PACE

Phalen v. Virginia (8 How. 163) 225 Pious Fluid Arbitration Case, The (Wilson, The Hague Arbitration Cases, p. 9) 71-72 Pizarro, The (2 Wheat. 227) 81 Platxans Case, The (Vattel, The Law of Nations, bk. ii, ch. xv, sec. 233) 33-34 Polish Letter Boxes Case, The (Pub. P. C. I. J. [B], No. 11) 133 Pond v. Maddox (38 Cal. 572) 68 Pope Case, The (3 Moore Arb. 2972) 239 191, 239 Prats Case, The (3 Moore Arb. 2900) Queen, The (Ralston, Venezuelan Arbitrations of 1903, p. 361) . . . . 179 Rast v. Van Deman & Lewis Co. (240 U. S. 342) Rhadamistus Case, The (Vattel, The Law of Nations, bk. ii, ch. xv, sec. 233) Richardson v. Anderson (1 Camp. 65) Rigende Jacob, The (1 Rob. 89) Rocca v. Thompson (223 U. S. 317) 195, Ross, In re (140 U. S. 453) 204, 217-221, 223,

225 34 81 81 242 242

St. Croix River Case, The (1 Moore Arb. 18) 197 St. J. Indiano, The (2 Gall. 268) 81 St. Joseph v. Levin (128 Mo. 588) 225 St. Louis v. Baskowitz (273 Mo. 543) 225 Sambiaggio Case, The (Ralston, Venezuelan Arbitrations of 1903, p. 666) 170-171, 172-173. 238-240 Santissima Trinidad, The (7 Wheat. 283) 81 Schooner Nymph, The (1 Summ. 517) 225 Schultze v. Mexico (3 Moore Arb. 2973) 239 Scutella's Estate, In re (69 Misc. Rep. 514; 129 N. Y. S. 20) 38, 82 Sea Horse, The (Ralston, Venezuelan Arbitrations of 1903, p. 359) 179 Seattle v. Barto (31 Wash. 141) 225 Servas' Estate, In re (169 Cal. 240) 82 Shanks v. Dupont (3 Pet. 242) 217 Shelburne v. Inchiquin (1 Bro. C. C. 338) 65 Silva Case, The (3 Moore Arb. 2979) 239 Simpson v. United States (199 U. S. 397) 200 Smith v. Cooley (65 Cal. 46) 225 v. Lucas (18 Ch. D. 542) 59 So Hakp Yon, Ex parte (1 Fed. [2d], 814) 212 Society v. New Haven (8 Wheat. 464) 58, 81 South Porto Rico Sugar Company Case, The (M. C. C. [U. S. & Ger.], p. 44) 128

TABLE

OF CASES

CITED

19 PAGE

Spotswood v. Morris (12 Idaho, 360) 225 State v. King (28 Cal. 265) 68 v. North (160 N. C. 1010) 225 v. Orange (3 Vroom, 49) 68 v. Phipps (50 Kansas, 609) 225 v. Succession of Marquise de Ciree (Man. Unrep. Cas. 412) . . 81 • v. Tagami (234 P. 102) 82 Steamship Rockingham, The (M. C. C. [U. S. & Ger.], p. 86) 129 Stewart Case, The (3 Moore Arb. 2989) 191, 239 Stixrud's Estate, In re (58 Wash. 339) 82 Stockton v. Williams (Walk. [Mich.], 120) 81 Succession of Rebasse Portier v. Le Roy (1 Yeates, 371) 81 Sullivan v. Kidd (254 U. S. 433) 200, 220-223 Switzerland v. France (6 Am. J. Int. L. 995) 195 Tamerlane Case, The (Pufendorf, The Law of Nature and Nations, bk. v, ch. xxii, sec. iii) 34 Tanner v. Little (240 U. S. 369) 225 Tcrrace v. Thompson (263 U. S. 197) 220, 226-229 Terrazas v. Donohue (227 S. W . 206) 82 v. Holmes (225 S. W . 848) 82 Tetsubumi Yano's Estate, In re (206 P. 995) 82 Thomas Cumming, The Hypothetical Case of (Lieber, Legal and Political Hermeneutics, p. 62) 41-42 Throckmerton v. Tracy (Plowd, 160) 54 Tom, The (39 Ct. CI. 290) 81 Treaty of 197 B. C. between the Romans and /Etolians, The Case Relating to the (Livy, History of Rome, vol. iii, bk. xxxiii, ch. xiii) 30 Treaty of 1830 between the United States and Turkey, The Case Relating to the (U. S. For. Rel., 1900, p. 909) 85 Treaty of 1850 between the United States and Switzerland, The Case Relating to the (H. Doc., No. 1, 56th Cong., ist Sess., 740-748) 84-85 Treaty of 1871 between the United States and Italy, The Case Relating to the (U. S. For. Rel., 1910, p. 658) 116 Treaty of 1903 between the United States and Panama, The Case Relating to the (U. S. For. Rel., 1908, p. 677) 99 Treaty of 1919 between the Principal Allied and Associated Powers and Poland, The Case Relating to the (Pub. P. C. I. J. [B], No. 7 ) 132 Tucker v. Alcxandroff (183 U. S. 424) 60, 204, 205-207, 226 v. United States (157 Fed. 386) 82 Tulsidas v. Insular Collector (262 U. S. 258) 209 Tutono, The (Ralston, Venezuelan Arbitrations of 1903, p. 3 6 0 ) . . . 179

20

TABLE

OF CASES

CITED PAGE

Ubeda v. Zialcita (226 U. S. 452) United States v. The Amistad (15 Pet. 518) v. Arredondo (6 Pet. 691) v. Bethlehem Steel Co. (205 U. S. 105) v. British Schooners (5 Alaska, 11) v. Brooks (10 How. 442) v. Chemical Foundation (5 Fed. [2d], 191) v. Diekelman (92 U. S. 520) v. Gue Lim, Mrs. (176 U. S. 495) v. Kagama (118 U. S. 375) v. Percheman (7 Pet. 51) v. Rauscher (119 U. S. 407) v. Seufert Bros. Co. (233 Fed. 579) v. Siem (299 Fed. 582) v. S t e m (5 Blatchf. 512) v. Texas (162 U. S. 1) v. Yorba (1 Wall. 412) Veloz Mariana, The (5 Moore Arb. 4873) Victoria, The (5 Moore Arb. 4873) Vilas v. Manila (220 U. S. 345)

204, 207-209 204 57 200 82 204 82 81 209, 211, 212 73 81, 205, 231-233 59 82 82 68 200 85 233-237 233-237 232

Ware v. Hylton (3 Dallas, 199) Weedin v. Mon Hin (4 Fed. [2d], 533) Whitaker v. English (1 Bay. 15) Wilson v. New (243 U. S. 332) v. Smith (s Yerg. 379) Wimbledon Case, The S. S. (Pub. P. C. I. J. [ A ] , No. 1) 46-48, 140-152, 193, W o o H o v. White (243 Fed. 541) Worcester v. George (6 Pet. 515) Wyman, In re (77 N. E. 379; 191 Mass. 276; 114 Am. St. Rep. 601) Wyman Case, The (3 Moore Arb. 2978) Yee W o n v. White (256 U. S. 399) Zacheman, The (5 Rob. 152) Zacualtipan Case, The (3 Moore Arb. 2973) Zaldivar v. Spain (3 Moore Arb. 2981)

81 82 81 225 81 194 212 59 204 239

210, 212 81 191 239

L I S T OF A B B R E V I A T I O N S U S E D I N T H E CITATIONS OF LAW R E P O R T S , O F F I C I A L DOCUMENTS AND LEGAL PERIODICALS Ac. Pol. Sc. Proc. Ad. & El. ( N. S.) Ala. Alaska. Alb. L. Jour. Am. Dig. Am. J. Int. L. Am. 3. Int. L. Supp. Am. L. Rep. Am. L. Rev. Am. Lawyer Am. Rev. Revs. Am. St. Rep. Ann. Cas. Annal Cong. App. Div. B. & Aid. Barb. Bay. Bee Adm. Blatchf. Bos. & Pull. Br. Pari. Sess. Pap. Brit. & For. St. Pap. Bro. C. C.

Atlantic Reporter. Proceedings of the Academy of Political Science (New York). Adolphus and Ellis' Reports, New Series. Alabama (Supreme) Reports. Alaska Reports. Albany Law Journal (Albany). American Digest: Century Edition, 50 vols.; Decennial Edition, 25 vols.; Second Decennial Edition, 24 vols.; Key Number Edition, 24 vols. (St. Paul). American Journal of International Law (New York). American Journal of International Law, Supplement (New York). American Law Report, Annotated, 45 vols. American Law Review (St. Louis). American Lawyer (New York). American Review of Reviews (New York). American State Reports. Annotated Cases, American and English (New York and San Francisco). United States, Annuals of Congress, 1789-1824. New York Supreme Court, Appellate Division Reports. Barnewall and Alderson, English King's Bench Reports, 5 vols. Barbour, Supreme Court Reports, New York, 67 vols. Bay, South Carolina Reports. Bee, United States District Court Reports. Blatchford, United States Circuit Court Reports. Bosanquet and Puller, English Common Pleas Reports, 3 vols. Great Britain, Parliament Sessional Papers. British and Foreign State Papers. Issued by the Foreign Office of Great Britain. Brown, English Chancery Cases, or Reports, 4 vols. 21

22 C. C. A. Cai. Cai. L. Jour. Camp. Can. L. Jour. Can. L. T. Cos. & Com. Cen. L. Jour. Ch.D. Col. L. Rev. Cong. Gl.

LIST OF

ABBREVIATIONS

Circuit Court of Appeals (United States). California Reports. Calcutta Law Journal (Calcutta). Campbell, English Nisi Prius Reports, 4 vols. Canada Law Journal (Toronto). Canadian Law Times (Toronto). Case and Comment (Rochester, New Y o r k ) . Central Law Journal (St. Louis). English Law Reports, Chancery Division, 45 vols. Columbia Law Review (New Y o r k ) . United States, Congressional Globe, 1833-1873 (Washington, D. C.). United States, Congressional Record, 1873, 68 vols. Cong. Ree. to 1927 (Washington, D. G ) . Connecticut Reports. Conn. Cranch, United States Supreme Court Reports, vols. 5-13. Cranch. United States Court of Claims Reports. Ct. CI. Dallas, Pennsylvania and United States Reports, vols. 1-4. Dallas. Devereux, United States Court of Claims Reports. Dev. Ct. CI. Devereux, North Carolina Equity Reports, vols. 16-17. Dev. Eq. United States, Department of States, Diplomatic CorDip. Cor. respondence of the United States for the Years 18611868 (Washington, D. C.). Dodson, English Admiralty Reports, 2 vols. Dod. Douglas' King's Bench Reports, 4 vols. Doug. K. B. Dow, House of Lords (Parliamentary) Cases, 6 vols. Dow. Ellis and Blackburn, Queen's Bench Reports, 8 vols. E.&B. Federal Reporter (United States). Fed. Federal Reporter (United States), Second Series. Fed. (M) Freeman, Mississippi Chancery Reports. Free. Ch. G.C.C. (U.S.&Mex.) General Claims Commission between the United States and Mexico Established in pursuance of the Convention of September 8, 1923. Gallison, United States Circuit Courts Reports. Gall. Grattan's Virginia Reports, vols. 42-72. Graft. Harvard Law Review (Cambridge, Mass.). Harv. L. Rev. Hill, New York Reports, 7 vols. Hill. Howard, United States Supreme Court Reports, vols. How. 42-65. Howell, English State Trials, 34 vols. How. St. Tr. Idaho Reports. Idaho. Illinois Reports. III. Illinois Law Review (Chicago). III. L. Rev. Indiana Reports. Ind.

LIST /. Dr. Int. P. Jac. Jur. Soc. Pap. Jus. P. Kansas. Knapp. L. N. Off. Jour.

L. N. Treaty Series.

L. Q. Rev. L.R. L. R. C. C. Law Mag. & Rev. Law T. M.C.C. (U.S.&Ger.)

Mackey. Man. Unrep. Cas. Martin. Mass. Me. Mich. Mich. L. Rev. Mills. Minn. Misc. Rep. Mo. Moore Arb.

OF

ABBREVIATIONS

23

Journal du Droit International Privé (Paris). Jacob, Erlglish Chancery Reports. Juridical Society's Papers (London). Justice of the Peace (London). Kansas Reports. Knapp's English Privy Council Reports, 3 vols. League of Nations, Official Journal. Published in separate editions in English and French, containing the complete minutes of the sessions of the Council of the League of Nations, the text of the Reports and Resolutions adopted by the Council, as well as the principal official documents received or despatched by the Secretariat of the League (London, 1920-). League of Nations, Treaty Series. Publication of Treaties and International Engagements Registered with the Secretariat of the League of Nations (London, 1920-). Law Quarterly Review (London). Law Reports. English Law Reports, Crown Cases Reserved (1866-75), 2 vols. Law Magazine and Review (London). Law Times (London). Mixed Claims Commission between the United States and Germany, Administrative Decisions and Opinions of a General Nature and Opinions in Individual Lusitania Claims and Other Cases (Washington, D. C., 1925). Mackey's District of Columbia Supreme Court Reports, vols. 12-21. Manning's Unreported Cases, Louisiana. Martin, Louisiana Reports. Massachusetts Reports. Maine Reports. Michigan Reports. Michigan Law Review (Ann Arbor, Michigan). Mills' New York Surrogate Court Reports, 17 vols. Minnesota Reports. Miscellaneous Reports, New York. Missouri Reports. Moore, History and Digest of the International Arbitrations, H. Misc. Doc., No. 312, 53rd Cong., 2nd Sess., 6 vols. (Washington, D. C., 1898).

LIST

24 Moore Dig.

N.C. N.E. N.H. N.W. N.Y. N. Y. L. Rev. N. Y. S. Nor. Am. Rev. Nouv. Rev. Hist. Ohio. Ohio (N.S.) Ohio L. Bull. P. Paine. Perm. St. Pet. Plowd. Proc. Am. Soc. Int. L. Pub. P. C.I. J.

(A).

Pub. P. C.I.J.

(B).

Pub. P. C.I.J.

(C).

Pub. P. C.I. J.

(D).

Pub. P. C. I. J.

(£).

Reg. Deb. Rel. Ver.

OF

ABBREVIATIONS

Moore, Digest of International Law, H. Doc., No. 551, 56th Cong., 2nd Sess., 8 vols. (Washington, D. C , 1906). North Carolina Reports. Northeastern Reporter, National Reporter System. New Hampshire Reports. Northwestern Reporter, National Reporter System. New York Court of Appeals Reports. New York Law Review (New York). New York Supplement Reports, National Reporter System. North American Review (New York). Nouvelle Revue Historique de Droit Français et Étranger (Paris). Ohio Reports. Ohio Nisi Prius Reports, New Series, 13 vols. Ohio Law Bulletin (Norwalk). Pacific Reporter. Paine, United States Circuit Court Reports, 2 vols. Pennsylvania State Reports. Peter, United States Supreme Court Reports, vols. 26-41. Plowden, Commentaries or Reports, English King's Bench, etc. Proceedings of American Society of International Law (New York). Publications of the Permanent Court of International Justice, Series A : Collection of Judgments, Nos. 1-7 (Leyden, 1922-26). Publications of the Permanent Court of International Justice, Series B : Collection of Advisory Opinions, Nos. 1-13 (Leyden, 1922-26). 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 - 1 1 (Leyden, 1922-26). Publications of the Permanent Court of International Justice, Series D : Statutes and Rules, etc., Nos. 1-4 (Leyden, 1922-26). Publications of the Permanent Court of International Justice, Series E : Annual Report, Nos. 1-2, 1922/251925/26 (Leyden, 1925-26). United States, Register of Debates, 1824-1837, 14 vols. Religionsgeschichtliche Versuche und Vorarbeiten (Giessen).

LIST Rep. Am. B. Ass. Rev. Cont. Rev. Droit. Int.

Rev. Gen. Riv. Dir. Int. Rob. Rob. Ecc. S. Ct. S. W. S.&R. Sazvy. Sol. Jour. Stat. Story. Sup. Ct. Taylor. Term. Tex. U.S. U. S. For. Rei.

OF

ABBREVIATIONS

25

Reports of American Bar Association (Philadelphia; Baltimore). Revue Contemporaine (Paris). Revue de Droit International et de Législation Comparée. First Series, 1869-1898, 30 vols.; Second Series, 18991913, 15 vols; Third Series, 1920- (Brussels). Revue Générale de Droit International Public ( P a r i s ) . Rivista di Diritto Internasionate (Rome). Robinson's English House of Lords Scotch Appeals Reports. Robertson's English Ecclesiastical Reports, 2 vols. Supreme Court Reporter, National Reporter System. Southwestern Reporter, National Reporter System. Sergeant and Rawle, Pennsylvania Reports, 17 vols. Sawyer, United States Circuit Court Reports, 14 vols. Solicitors' Journal and Weekly Reporter (London). Statutes at Large of the United States, 1789Story's United States Circuit Court Reports, 3 vols. Supreme Court Reporter (United States), National Reporter System. Taylor's North Carolina Reports, vol. 1. Term Reports, King's Bench (Durnford and East, Reports), 8 vols. Texas Reports. United States Reports. United States Department of State, Papers Relating to the Foreign Relations of the United States, 1870-. The volume for the year 1916 was the latest one published during 1925 (Washington, D. C., 1870-).

U. S. Treaties.

Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and other Powers, 1776-1909, 2 vols., edited by William Malloy (Washington, D.C., 1910), S. Doc., No. 357, 61st Cong., 2nd Sess. ; 3rd vol. covering period 19101923 (Washington, D. C., 1933), S. Doc., No. 348, 67th Cong., 4th Sess.

Univ. Penn. L. Rev. Va. Fes. Vir. L. Rev. Vroom. Vt. Walk. (Mich.).

University of Pennsylvania Law Review (Philadelphia). Virginia Reports. Vesey, Senior, English Chancery Reports, 2 vols. Virginia Law Review (University of Virginia). New Jersey L a w Reports, vols. 30-85. Vermont Reports. Walker, Michigan Chancery Reports.

26

LIST

Wall.

Wallace, United States Supreme Court Reports, vols. 68-90. Washington State Reports. Washington, United States Circuit Court Reports, 4 vols. Wheaton, United States Supreme Court Reports, vols. 14-25. Yeates, Pennsylvania Reports, 4 vols. Yerger, Tennessee Reports, vols. 9-18.

Wash. Wash. C. C. Wheat. Yeates. Yerg.

OF

ABBREVIATIONS

CHAPTER

I

INTRODUCTION I. A C H A L L E N G E TO T H E O L D S C H O O L

THE subject of treaty interpretation warrants scientific research for two reasons—academic and judicial. F r o m the academic standpoint, publicists ever since the days of Grotius and Vattel have resorted to metaphysical formulae and arbitrary distinctions as their polestar in interpreting international agreements. They have made painful efforts to lay down artificial yet precise specifications of method, and to induce nations to observe their imaginary canons. In order to put their conjectures into a system, oftentimes a nomenclature of classes, modes and species of interpretation has been frequently elaborated whereby various cases, actual or hypothetical, have been described for the sake of elucidating their definitions and for the purpose of exhibiting the application of particular canons which they have deliberately framed. Thus V a t t e l 1 employed the terms extensive and restrictive interpretation, and Phillimore 2 the terms authentic, usual and doctrinal interpretation; and indeed they have presented their artificial maxims with assiduous nicety. In deference to such a procedure in viewing the problem, text writers have accumulated a mass of fanciful rules which, on account of their sweeping, mechanical nature, have caused the task of interpretation to become dangerous. 1 Vattel, The Law of Nations, bk. ii, ch. xvii, sees. 290 et seq.

Joseph Chitty ed. (Philadelphia, 1861),

•Phillimore, Commentaries Upon International 1882), vol. ii, ch. viii, sees. Ixvii et seq.

Law, 3rd ed. (London,

27

28

THE

INTERPRETATION

OF

TREATIES

T h e challenge to this school of interpretation, however, is this: Can scientific results ever be obtained through sheer flights of imagination? T h a t the collection of rules sponsored by some publicists are inefficacious in interpreting treaties between nations may be seen from the very fact that interpretation is eminently a practical science, and as such it has to consider extrinsic evidence and inherent circumstances peculiar to each individual case. Moreover, the fundamental difficulty in prescribing a system of rules also lies in the imperfect nature of human language itself, through which no one can define or direct any intellectual process with perfection. H o w then is it to be expected that any artificial rules which are generally to govern the operations of human relationship can be of scientific value? It would appear, therefore, as futile to attempt to frame positive and fixed rules of construction as to endeavor in the same manner to set forth the mode by which the judges should draw conclusions from various species of evidence. Curiously enough, although some of the noted modern writers on international law have sporadically and spasmodically disavowed the traditional attempt to draw rules of construction, with a single exception, 1 no work has been seen in which the author has made serious endeavor to develop the application of a new system of treaty interpretation based, not on canons, but on a scientific search for the sources of evidence. In fact, the dogmas of Vattel have been so deeply rooted that the influence of the new school has not as yet gone beyond the stage of its early infancy. W h a t is more interesting to note is that as the detailed scrutiny of the minute rules has been so thoroughly repeated by the followers of the traditional school that there remains little room for additional subtlety and refinement, many of the H y d e , International Law Chiefly as Interpreted United States (Boston, 1922), vol. ii, pp. 61 ct seq.

and Applied

by

the

INTRODUCTION

29

¡modern publicists have found it appropriate, either to refer to interpretation as if it were a topic of insignificance, or to .avoid fresh comment on the subject. This melancholy academic stagnation, if it be so called, is in contravention to the progressive advancement of the science of international l a w ; yet it encourages the attempt and affords ample justification for the effort to supplant the old method with new and surer guides. While the academic writers have theorized too much on rules of construction and made little scientific analysis o f , or practical observations on, actual cases, international courts and arbitral tribunals have frequently applied such isolated rules in their judicial opinions and undertaken the least original theorization. Unlike the situation faced by the publicists of the old school of interpretation, who have an organized system purported to institute canons, the judicial world, having no system of its own, has either to follow the ruts of Vattel or to transform interpretation into an arbitrary, discretionary act. Thus the manifestation of the need of a new system may be readily seen both from the anomalous application of rules, which have even caused wars and injustices, and from scattered naive utterances for which might have been substituted others in accordance with scientific principles of interpretation. But curiously enough, no international jurists crowned with valuable experiences in international arbitrations have written any treatises, presenting the systematic procedure of tackling the problem— the procedure of invoking extrinsic evidence instead of preconceived rules. Consequently, considered from both judicial and academic viewpoints, the subject of treaty interpretation requires serious attention and careful research. T h e gap which has so far separated the minds of publicists and jurists cannot be bridged unless the challenge to the arbitrary maxims and

THE

30

INTERPRETATION

OF

TREATIES

minute, metaphysical rules of construction be answered with the recognition of tangible principles such as those cherished by a different school of interpretation; and he who helps to bridge this gap will not only render a service to the field of international law, but also to the reign of international peace and international justice. II. T R E A T Y INTERPRETATION* A N D I N T E R N A T I O N A L

PEACE

It has been said that " some of the bloodiest wars . . . . inflicted upon the human race have originated in a conflict of opinions respecting the interpretation of treaty stipulations," 1 and that " more wars have been caused, or justified, by disputes as to the construction of international compacts than by any other cause or pretext." 2 Such assertions may be too sweeping, and yet that there is some truth therein can scarcely be denied by students of history and international affairs. 3 A s the problem of interpretation has seldom been ' H a l l e c k , International 3

Law

( L o n d o n , 1908), vol. i, pp. 326-327.

A d l e r , " T h e Interpretation of T r e a t i e s , " 26 L a w M a g . & R e v . 62.

' E v e r since the ancient days of the R o m a n s and G r e e k s , w a r s

have

been w a g e d on different occasions over the u n j u s t interpretation of treaties. T r a d i t i o n abounds in bloody p r o o f s and history teems w i t h u n f o r t u n a t e instances. xxxiii,

Livy

ch. x i i i )

( T h e History spoke of

of

Rome

[London, 1849-50], vol. iii, bk.

the c o n t r o v e r s y

between

the

Romans

and

yEtolians o v e r the interpretation of the treaty of 197 B* C., w h i c h p r o v e d to be the cause of subsequent catastrophes.

A c c o r d i n g to an a g r e e m e n t

concluded w i t h the purpose of b r e a k i n g the p o w e r of M a c e d o n i a , a l l the m o v a b l e spoils of w a r should g o to the R o m a n s and the lands and captured cities should f a l l to the . S t o l i a n s .

A f t e r the d e f e a t of Philip, the

i i t o l i a n s claimed the T h c s s a l i a n cities in accordance w i t h the t e r m s o f the treaty stipulation.

T o rebut this claim, the R o m a n s contended

that

the /Etolians themselves annulled the conditions of the t r e a t y at the t i m e w h e n they deserted the R o m a n s and made peace w i t h Philip, and that e v e n if the t r e a t y w e r e still in f o r c e the clause on w h i c h the c l a i m w a s based provided only f o r capturcd

cities w h i l e the states of T h e s s a l y had s u r -

rendered b y a v o l u n t a r y act of their own. of

quibbling in w o r d s of

T h i s is c l e a r l y a n e x a m p l e

a solemn international

agreement.

The

bad

f a i t h on the part o f the R o m a n s w a s h i g h l y displeasing to the .SLtolians

INTRODUCTION

31

treated scientifically, and jurists, oftentimes instead of seeking fundamental principles, have been complicating the situation with unnecessary, artificial rules, the interpretation of treaties often becomes a plank of " diplomatic see-saw," or a football of the game of political bargaining, which, in the course of events may develop into a bone of contention, for which the contracting parties will spare neither iron nor blood. Hence it not infrequently happens, that when one state seeks an excuse for fighting against another, or for encroaching upon another's sovereign rights, some ancient and long-forgotten treaty is dug out f r o m the dusty archives so that some weird, fanciful interpretation thereof may be introduced to accuse the friendly contracting party with allegations of a violation of its stipulations. O f course, it ought not to be pretended that a sound establishment of the principles of interpretation would prevent all wars arising therefrom, but it would certainly give the disputes a just explanation and make the real aggressor in an unjust war sensitive to the odium that she was disturbing the peace of nations under the cloak of falsely interpreting an international contract. Such a reliance upon equitable interpretation is not by any means a declaration of highsounding shibboleth; it is, instead, sanctioned by the same imperceptible force by which international law itself is sanctioned, namely, the " infinite and almost mysterious influence exercised by the general opinion of the world." 1 at the time, " and proved a f t e r w a r d s the cause of a war, and many great disasters attending it." See Phillipson, The International Law and Customs of Ancient Greece and Rome (London, 1 9 1 1 ) , vol. i, pp. 407-408, where it is related that in spite of the Peace of Nicias, 421 B . C., providing a mutual restitution of prisoners and places taken during the war, Thebes retained Plataea because it had been voluntarily surrendered, and Athens w a s allowed to hold Nisaea, A n a c t o r i u m and Sollium f o r the same reason. 1 Root, " T h e Sanction of International L a w , " 2 Proc. A m . Soc. Int. L . 14, 19-20.

THE INTERPRETATION

OF

TREATIES

III. TREATY INTERPRETATION AND INTERNATIONAL JUSTICE

Once in the course of discussing the problem of treaty interpretation,

Sir

John

Macdonell

asked

the

following

question: " W h a t availed it to have done with secret treaties, or to ensure their s a f e custody, or to d r a f t them greater care and candour, alike?"

1

if

they were not

with

interpreted

T h i s query points out the significance of the task

of seeking common principles which the family of nations should respect as a family code in settling disputes over interpretation.

A s the situation stands, there is no supreme

court to which all nations are agreed to resort and by whose decision they must be bound.

International agreements still

remain unenforcible, or open to diverse modes of interpretation; shrewd diplomats are still disposed to invoke some of the so-called rules of construction in support of respective contentions. tions of

1899 and

their

It is true that the H a g u e Conven-

1907

recommended

arbitration as

a

method of settling disputes as to the meaning of treaties, but would arbitration be a just resort while the horizon of human reason is clouded w i t h so many rules of interpretation?

Articles X I I I and X I V of the Covenant of the L e a g u e

of Nations contemplate the settlement of disputes arising under treaties by a court o f arbitration or by the Permanent C o u r t of International Justice; but unless there is established an agreement as to the fundamental principles of interpretation, how can nations expect diplomats to cease the bandyi n g to and f r o of references to rules with selfish interest? N o one can be a student of international law and at the same time fail to observe that in the course of negotiating treaties rules of construction may afford diplomats golden chances to marshal phrases and clauses, and to manipulate terms and terminologies w i t h cool, cunning skill fortified by a f e w foreseen defensive weapons of dubious connotations 1

Macdonell, " T h e Interpretation of Treaties," 146 L a w T . 360.

INTRODUCTION

33

in order to meet any future disputes; and that when the time of interpretation arrives such rules will serve as a magic wand enabling the clever and unscrupulous to strike from the treaties what was mutually agreed upon by the negotiators of both parties. In a private contract a party would be charged by a national court as being dishonest if he had such bad faith, but in the field of diplomacy, where the action of diplomats is not shackled by a common court, whatever gains the plenipotentiaries bring home are received with ovation and attributed to their patriotic zeal. A n d yet, if it is neither just nor right to take or refuse to yield what justice demands in a contract between individuals, should such conduct be considered otherwise simply because the agreement is one between two nations? In other words, should there be one moral code for the contractual obligations between persons and an entirely different standard for the contractual obligations between states? T o answer in the affirmative would endanger the very foundation upon which nations base their just and amicable relationships. If it is recognized that honesty is the best policy and that diplomatic intrigues are apt to return to one's own door under the combined force of time and circumstance, it becomes a reasonable task to ascertain the true principles of treaty interpretation. In this connection, it is desirable to cite a few instances of false construction so as to illustrate the close relationship between the task of treaty interpretation and international justice. Relying on the several instances quoted by Grotius, 1 V a t t e l 2 lamented the case of the Plateans, who, having promised the Thebans to restore their prisoners, restored 'Grotius, The Rights of War and Peace (London, 1901), bk. ii, ch. xvi, sec. v. 1

Vattel, op. cit., bk. ii, ch. xv, sec. 233.

34

THE

INTERPRETATION

OF

TREATIES

them after they had put them to death; that of Pericles, who, having agreed to spare the lives of such of the enemy as laid down their arms (literally, " laid down their iron or steel"), gave orders to kill all that had iron clasps to their cloaks; that of a Roman general, who, having promised Antiochus to restore him half of his fleet, caused each of the ships to be sawed in t w o ; and that of Rhadamistus, who, having sworn to Mithridates that he would not employ either poison or the steel against him, caused him to be smothered under a heap of clothes. Again, Pufendorf 1 told so vividly of the intrigue of Mahomet who, having promised a person to spare his head, caused him to be cut in two through the middle of the body; and that of Tamerlane, who, after having caused the city of Sebastia to capitulate and promised to shed no blood, ordered all the soldiers of the garrison to be buried alive. Such atrocious outrages might seem to be conceivable only in ancient times, but they do indicate the seriousness of the consequence attendant upon the unjust twisting of and playing on words. In the oft-quoted case between England and France over the ninth article of the treaty of Utrecht, a simple illustration of possible injustices resulting from unreasonable interpretation is found. 2 According to the said stipulation, the port and fortifications of Dunkirk should be destroyed, " nec dicta munimenta portus moles aut aggeres denuo quarn reficiantur." While only the name of Dunkirk was specifically mentioned, the obvious design of the parties as manifested through the treaty was not only to dismantle that particular port but also to prevent France from having a defens1

P u f e n d o r f , The

Law

of Nature

and Nations

( O x f o r d , Eng., 1703),

bk. v, ch. x x i i , sec. iii. 1 Wildman, Institutes of International Law (Philadelphia, 1850), vol. i, pp. 1 1 2 - 1 1 3 ; Phillimore, bp. eit., vol. ii, pp. 102-103; Hall, A Treatise on International Law ( O x f o r d , Eng., 1924), pp. 392-393; Crandall, Treaties, Their Making and Enforcement, 2nd ed. (Washington, 1916), p. 372.

INTRODUCTION

35

ible place of military equipment just opposite the Thames. Consequently, when the king of France, after having destroyed the port of Dunkirk in compliance with the treaty, constructed at a distance of a league the port of Mardick, the English Government complained against the absurdity of putting such a strict, literal interpretation on the treaty provision. T h e French Government ultimately had to recognize the strength of the British argument, and abandoned the constructions at Mardick. By the fourth article of the treaty concluded at the Hague in 1717 it was provided that no port should be constructed within two leagues of either Dunkirk or Mardick ; and the controversy was thus closed. Such is only one among numerous international disputes which exhibit the danger of unscientific interpretation. Had the French view been recognized the raison d'être of the stipulation would be unjustly compromised. And yet in the wording of the agreement there was neither a specific inhibition of such action as taken by the French Government, nor a perceptible obligation to destroy any port other than that of Dunkirk. Therefore, cases like this should not be decided by any rule of construction but by ascertaining the true design of the negotiators as determined by extrinsic evidence; they should be viewed from the standpoint of justice of all concerned rather than the temporary gain of a single nation. Very unfortunate is the existing situation even in the modern world whereby national egoism frequently prompts a nation to exact immediate gains by attributing literal connotations to terminologies in an agreement, irrespective of the possible future effect. Indeed, the non-observance of uniform justice among states stands as one of the most prominent manifestations of primitive near-sightedness, against which — especially in the field of international contractual relationship—a recognition of scientific principles of inter-

THE INTERPRETATION

OF

TREATIES

pretation may certainly bring reform and betterment. A l though the goal to international justice is remote, and the road uneasy, the struggling for the ideal on the part of international jurists and students of international law gives cause for satisfaction. Speaking from the American point of view, Mr. Robert Lansing tersely s a i d : 1 When we come to formulate our foreign policies upon the belief that justice in the abstract is a dominant force in the regulation of world affairs, we are building on a foundation which, however desirable, is by no means certain. W e must recognize the fact, unpalatable though it may be, that nations to-day are influenced more by selfishness than by an altruistic sentiment of justice. The time may come when the nations will change their present attitude through a realization that uniform justice in foreign as well as domestic affairs is the highest type of expediency; but that time has not yet come, and, if we are wise, we will not deceive ourselves by assuming that the policies of other Governments are founded on unselfishness or on a constant purpose to be just even though the consequences be contrary to their immediate interests. But the challenge of such a statement remains to be this: Should nations, while fully aware of the expediency of uniform justice, remain in the state of inaction, and drift into the current of international ills, simply because the national habit has been deeply and deplorable rooted? In other words, if it be proven that the rules of construction, for instance, are dangerous to international justice and threatening to international peace, should we still assiduously add bricks to the fanciful edifice of Vattel or Phillimore? I f the experience afforded us by the history of international diplomacy and by the decisions of judicial courts demands a verdict of reform, should not peoples and governments de1

Lansing, " Some Legal Problems of the Peace Conference," 44 Rep.

Am. B. Ass., 238, 242-243.

Cited in Hyde, op. cit., vol. i, p. 21, n. 1.

INTRODUCTION

37

mand that treaties be interpreted according to scientific principles of reason instead of by a shrewd, customary practice of selfish bargaining? "The present, the future," as Judge Moore has so eloquently put it in another connection, " turns upon our response; and may we in this fateful hour deserve the encomium bestowed on a great ruler, that he was the irreconcilable enemy, and perpetual conquerer, not of any nation or man, but of injustice." 1 IV. PURPOSE OF T H E INVESTIGATION

Having thus briefly orientated the position of treaty interpretation in international relations, it is easy to see that justice and peace among nations impose a solemn duty on the students of international law—the duty of seeking scientific interpretation. The action of Vattel and Domat in laying down artificial rules of construction has to be opposed: justice and equity cannot be reasonably done by a set of preconceived canons, inasmuch as time and circumstance which always play an essential role in human activities do not cease functioning in the process of treaty-making and treaty-interpreting.2 To those who have given much scientific consideration to the problem, the reasonableness of such a statement can hardly be gainsaid. The so-called mechanical theory of interpretation has to be abandoned, just because it 1 Moore, International Law and Some Essays ( N e w Y o r k , 1924), p. 39.

Current

Illusions

and

Other

2 Commenting on the superficial utility of the minute and precise codes of interpretation to be found in the Civil L a w — w h i c h are chiefly those of Vattel and Domat—the learned and sagacious Savigny said: " F ü r die Auslegung nun in Anwendung auf die meisten Fälle dieser letzten, lassen sich durchgreifende Grundsätze der Auslegung nicht wohl aufstellen. Auch sind die meisten Aeusserungen der Römischen Juristen hierüber von einem sehr allgemeinen Charakter, und ziemlich auf der Oberfläche liegend, so dass sie in zweifelhaften Fällen nicht leicht weiter führen werden, als wohin die besonnene E r w ä g u n g des einzelnen Falles ohnehin führen musste." Savigny, Das Obligationenrecht (Berlin, 1853), vol. ii, p. 189.

THE

INTERPRETATION

OF

TREATIES

often ignores the consideration of extrinsic evidence and vital circumstances. Vattel might boast that through his rules of construction what was inherently vague could be rendered clear and what was unprovided for could be made to appear between the lines of the stipulation. But reason dictates that artificial contrivances should not be taken as an invariable measurement of human activity, and that truth can be best ascertained by scientific induction, with data and facts thoroughly examined according to sound principles. In this monograph the author attempts to ascertain the fundamental principles of interpretation chiefly by analyzing —contrasting and comparing—the utterances and decisions of courts, national and international. In instructive cases, pains are taken to survey the relevant facts, whereby the tokens of evidence may be vividly brought out. While the principles involved in interpreting treaties do not differ from those involved in interpreting statutes, constitutions, private contracts or any other written instruments in general, 1 it is deemed expedient to limit the scope of the present inquiry to the former category so that a more thorough examination may be undertaken in the allotted space. This, to be sure, is not to be construed as a curtailment of freedom in citing ' F o r treatises on interpretation of such documents, see Dwarris, A General Treatise on Statutes (London, 1848) ; Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law ( N e w York, 1874) ; Maxwell, On the Interpretation of Statutes (London, 1 8 7 5 ) ; Story, Commentaries on the Constitution of the United States (Boston, 1 8 7 3 ) ; Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Boston, 1905), vol. iv, sees. 2458, et seq. See In re Scutella's Estate, 69 Misc. Rep. 5 1 4 ; 7 Mills, 597, decree reversed 129 N . Y . S. 20, 145 App. Div. 156. Cf. the English case, Marryat v. iVilson ( 1 7 9 9 ) , 1 Bos. & Pull. 439, where M r . Chief Justice E y r e declared: " W e are to construe this treaty as w e would construe any other instrument, public or private. W e are to collect from the nature of the subject, from the words, and from the context, the true intent and meaning of the contracting parties whether they are A and B or happen to be two independent states."

INTRODUCTION

39

the views of learned jurists on private law. Quite on the contrary, the author feels free in commenting on the theories and principles sponsored and expounded by any writers of great repute. Curiously enough, it is a pleasure to acknowledge that the incentive, which has aroused his confidence in scientific interpretation based on evidence instead of canons, is not only from the writings of a publicist 1 but also from the work of a private lawyer. 2 Believing, as he does, that he has profited by such confidence in his effort to offer some contribution, the author entertains a profound hope that the days will not be long before uniform justice among nations respecting treaty interpretation may be attained by established principles of scientific reasoning, and that the seventeenth chapter of Vattel's second book may sink into the rank of dormant legal classic, inapplicable to the complex transactions engaged in by the society of nations. T h e order and procedure followed by the inquiry are simple, inasmuch as the inherent characteristics of the problem warrant no fanciful conjectures. First of all, the nature of treaty interpretation is presented, laying special stress on the misconceptions and confusion of thought current in the minds of many; and then the standard and sources of interpretation, which indeed form the t w o main steps in the whole process of interpretation, are carefully scrutinized through the inductive understanding of instructive cases. Furthermore, in order to emphasize the value of the principles as advocated throughout the monograph, the fallacies of some of the so-called rules of construction are pointed out, and the real signification of the others are orientated. A s a sequence of the latter task there follows a survey of the doctrine of uberrima fides, which embraces in substance many a misplaced declaration of good faith erroneously classified as a canon of interpretation. 1

Hyde, op. cit., vol. ii, pp. 6i et seq.

2

Wigmore, op. cit., vol. iv, sees. 2458 et seq.

CHAPTER

II

T H E N A T U R E OF T H E PROBLEM I.

INTRODUCTORY

L A N G U A G E at its best is a means to an end; words must be taken as indices to things extrinsic. A s the parties to an agreement are prone to ignore evidence detrimental to their own claims, rigid rules framed for interpretation, though seemingly logical and expedient at certain moments, are often dangerous to justice and injurious to equity. V a t t e l 1 says that " it is not allowable to interpret what has no need of interpretation," but the weakness of such a sweeping declaration can hardly be gainsaid. T o interpret a treaty means to give life to dead letters as well as to complete a part of the procedure of realizing an act in the external world. Consequently, as Wigmore 2 insists, there is an ever-ready demand for interpretation.® ' V a t t e l , op. cit., bk. ii, ch. xvii, sec. 263. See Hartford I. M. Co. v. Cambria M. Co., 80 Mich. 491, 499; 45 N . W . 3 5 1 : " T h e r e should be interpretation only w h e n it is needed." T h e process of interpretation, then, though it is commonly simple and o f t e n unobserved, is a l w a y s present, being inherently i n d i s p e n s a b l e . . . . I t is, in a sense, the completion of the a c t ; f o r 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 the garden gate, he would not need to be concerned with the process of interpretation. B u t deeds and contracts and wills, if they are not to remain empty manifestoes, must be enforced. T h e y must be applied to external objects." W i g m o r e , op. cit., vol. iv, sec. 2458, p. 3470. ' A distinction is o f t e n d r a w n between interpretation and construction, w h i c h seems to be unnecessary (see Lieber, Legal and Political Hermeneutics [Boston, 1839], pp. 61 et seq.). T h a t there is a difference in 40

THE NATURE

OF THE

PROBLEM

41

In the newspapers it is frequently announced that a cerdegree between the t w o terms m a y be conceded, but the endeavor

to

distinguish b e t w e e n them is u n w a r r a n t e d and c o n f u s i n g , if there is no difference in kind.

L i e b e r thinks that interpretation " can only take place,

if the t e x t c o n v e y s some m e a n i n g o r o t h e r , " w h i l e " c o n s t r u c t i o n is the drawing of

conclusions respecting subjects, t h a t lie beyond the

direct

expression of the t e x t , f r o m elements k n o w n f r o m and g i v e n in the t e x t — c o n c l u s i o n s w h i c h are in the spirit, t h o u g h not w i t h i n the letter of the t e x t " (ibid.,

pp. 55, 5 6 ) .

I n s a y i n g this, he is w r o n g l y limiting the pro-

cess of interpretation to strictly literal interpretation.

If

interpretation,

as will be seen presently, is approached by a s c e r t a i n i n g the sense in w h i c h t e r m s have been used and e x h a u s t i n g all evidence available, it certainly comprises, in all cases, the proper f u n c t i o n w h i c h L i e b e r has attributed to construction.

The

distinction,

t h e r e f o r e , is

u n f o r t u n a t e , and

Lieber's

claim " that many l a w cases w o u l d be settled w i t h g r e a t e r ease, and to the g r e a t e r s a t i s f a c t i o n of the interested parties if this distinction w e r e strictly kept in v i e w " is m o r e apparent than real.

S i n c e it is important to clear

up any c o n f u s i o n o f thought in this connection, it is desirable, by w a y o f illustration, to e x a m i n e the f o l l o w i n g hypothetical case (ibid.,

pp. 62-63) :

" A gentleman w h o m w e m a y call T h o m a s C u m m i n g , a bachelor, and a native o f

Great

B r i t a i n , accumulated

a considerable

f o r t u n e in the

U n i t e d S t a t e s ; he died, and his testament s h o w e d that he had bequeathed a l a r g e sum to ' h i s nephew, T h o m a s C u m m i n g , ' in E n g l a n d .

T h e latter

w a s dead at the t i m e of the m a k i n g of his uncle's w i l l in A m e r i c a , leaving, h o w e v e r , an o n l y child, l i k e w i s e called T h o m a s C u m m i n g ; but the death of the one and the birth of the other w e r e equally u n k n o w n to T h o m a s C u m m i n g , the eldest, at the time w h e n he m a d e his testament, and d o w n to the time o f his decease.

N o w it w a s contended that T . C u m m i n g , the

testator, did not leave the sum to T . C u m m i n g , t h e nephew, he b e i n g a l r e a d y d e a d ; and that the birth of the y o u n g e s t C u m m i n g , not y e t being k n o w n to the testator he could not have meant him.

I t is evident that a c -

c o r d i n g to the true import of the t e r m ' interpretation,' the a r g u m e n t w a s g o o d ; f o r a c c o r d i n g to the true m e a n i n g o f the testator's w o r d s , that is a c c o r d i n g to the m e a n i n g w h i c h he attached t o them, he cannot meant T . C u m m i n g the youngest.

have

B u t there b e i n g no T . C u m m i n g , w h o m

the testator meant, in existence, the question becomes, h o w shall w e d r a w our conclusions and apply them to the s u b j e c t , w h i c h lies beyond

the

direct expression o f the t e x t , f r o m elements k n o w n by and g i v e n in the t e x t — t h e testament in the present c a s e ?

Is the testament our g u i d e o r

not?" L i e b e r a r g u e s that interpretation is insufficient t o apply in this case, and construction becomes necessary.

S u c h a n attitude, w h e n superficially

considered, appears to be reasonable, but its f a l l a c y is not difficult to

THE INTERPRETATION

OF

TREATIES

tain program is to be broadcast at a certain station called W M S G ; and yet to those w h o are not accustomed to radio entertainment W M S G means nothing more than a combination of four letters. In the daily conversation between financiers the activities of the " Bull " and " Bear " in the financial district are often intently discussed, but to those to w h o m Wall Street is an absolute terra incognita, such terms are great puzzles. While cases like these might appear to be commonplace, they do, however, illustrate that words are mere symbolic figures, conveying the nearest representation of the design of those persons concerned. 1 N o rule of international law forbids the application of disclose. If by construction is meant the drawing of conclusions respecting subjects cognate to the design of the framer of the instrument, then would interpretation—by ascertaining the standard, by seeking f o r evidence or by invoking the doctrine of uberrima fides—not accomplish the same aim and perform the same function? For instance, the doctrine of Cy-prci, which is so familiar to those in the legal profession, certainly should not be considered as deriving its origin or foundation from a construction arbitrarily or whimsically wrought, but rather from an interpretation, based on evidence and standard—however remote—of the testator, regarding the document. Consequently, in the case under discussion, it should not be contended that since the testator had not in his mind T. Cumming the youngest, at the moment of making his testament, there could be left no room for interpretation. The construction giving rise to the belief that Thomas Cumming the eldest meant to leave the money to the English branch of his family, is not based on subjects entirely without the testament, but is rather deduced from the evidence and existence of the very instrument itself. Indeed what construction can rightly perform, interpretation can; where interpretation does not apply, construction should cease functioning. Therefore, it becomes obvious that a distinction between the terms construction and interpretation is as superfluous as it is confusing. Inasmuch as f r o m the point of view of etymology, the word construction—derived f r o m conslruere (con and struo), meaning to build up or to pile up—has a somewhat dangerous connotation when compared with interpretation—derived f r o m interpret, interpretari, a compound of inter and pretari—the latter terminology is used in this monograph. 1

" There is no direct communion," says Lieber, " between the minds

THE NATURE

OF THE

PROBLEM

43

technical terms; no Webster could prevent the financiers of the stock market f r o m using the words " B u l l " and " B e a r " in a sense totally different f r o m that which ordinarily designates the t w o particular kinds of quadruped animals. T h u s it seems clear that the initial task of interpretation is the seeking out of the sense or the ascertaining of the standard in which the contracting parties employed particular terms.

But this is frequently no easy task, inasmuch

as in the absence of a recognized system of interpretation, it is almost impossible f o r the contracting parties, by w a y of prevention, to foresee and embody in the contractual instrument that which would avoid a future contention resulting f r o m every particular combination of time and circumstance. W h i l e belief is o f t e n entertained that b y concluding agreement, States acquire, ipso facto,

an

a moral obligation to

put upon its provisions a fair and equitable interpretation, instances, as have been noted, are abundant where a shrewd party is wont to introduce words of ambiguous meaning so that they m a y thenceforth afford him a handle f o r oppression or a loop-hole f o r evasion.

Consequently, in order

to check against such dangers, a second step of interpretation must be taken, namely, the searching f o r all sources of eviof m e n ; whatever thoughts, emotions, conceptions, ideas of delight or sufferance w e feel urged to impart to other individuals. W e cannot obtain our object without resorting to the outward manifestation of that w h i c h moves us inwardly, that is, to signs T h e signs w h i c h man uses, the using of which implies intention, f o r the purpose of conveying ideas or notions to his fellow-creatures, are very various, f o r instance, gestures, signals, telegraph, monuments, sculptures of all kinds, pictorial and hieroglyphic signs, the stamp on coins, seals, beacons, buoys, insignia, ejaculations, articulate sounds, or their representations, that is phonetic characters on stones, wood, leaves, paper, etc., entire periods, or single words, such as names in a particular place, and whatever other signs, even the flowers in the flower language of the East, might be enumerated. . . . T h e s e signs then are used to convey certain ideas, and interpretation, in its widest meaning, is the discovery and representation of the true meaning of any signs, used to convey ideas." Lieber, op. ext., pp. a, 17.

THE INTERPRETATION

OF

TREATIES

dence so as to find the true sense in which terms are employed by the contracting parties. These two steps generally cover the whole process of interpretation; they serve, as it were, like the two legs of a compass, capable of measuring with scientific accuracy the true worth of all arguments over treaty interpretation. It has been said t h a t : 1 The method of interpretation consists in finding out the connection made by the parties to an agreement, between the terms of their contract and the objects to which it is to be applied. This involves two steps. One is to ascertain what has been called the " standard of interpretation " ; that is, the sense in which various terms are employed. The other is to learn what are the sources of interpretation; that is, to find out where it is possible to turn for evidence of that sense. Such is the nature of the problem of interpretation precisely stated, the procedure being simple and sound. Since the purpose of this chapter is to deal with questions and topics cognate to and interwoven with the fabric of the nature of interpretation, it appears imperative, in order to undertake the task graphically, to endeavor to dissipate confusion of thought so as to pave the way for the treatise in regard to the ascertainment of standard and the exhaustion of evidence, which embody the two succeeding chapters and identify the process of scientific interpretation. II.

C O N S T A N T NEED OF I N T E R P R E T A T I O N

W h i l e courts are frequently misguided by the perversity of Vattel's " first general maxim of interpretation " that " it 1

H y d e , op. cit., v o l . ii, p. 61, c i t i n g W i g n i o r e , op. cit., vol. iv, sec. 2458,

pp. 3470-3471, w h e r e it is stated that " t h e method of interpretation consists in ascertaining terms ...

of The

pretation?

the actor's

the act and the various first

associations possible

or connections objects

between

of the external

question must a l w a y s be, W h a t is the standard

T h e second question is, In w h a t sources

standard to be ascertained ? "

the world.

of

is the tenor o f

interthat

THE NATURE OF THE PROBLEM

45

is not allowable to interpret what has no need of interpretation," 1 it must needs be recognized that the evasive effect of such an attitude is not only obstructive of the ascertainment and use of extrinsic evidence, but also apt to encourage erroneous standards of interpretation. W o r d s , as has been noted, are simply a means—and an imperfect means—to the end of conveying design, and as such they are always open to interpretation. T h a t the sense of a term appears to be obvious may be due to the simpleness of the process of ascertaining the standard, but merely because of that simpleness, it should not be alleged that there is no need of interpretation. Likewise, it may sometimes so happen that evidence indicative of the design of the contracting parties is so overwhelming that it does not call for elaborate interpretation, but this situation should not be taken as a ground for shutting the doors to hitherto undiscovered data and facts. " In short," as Dean Wigmore has so lucidly put it, " the interpretation of the terms of a legal act is an essential part of the act considered as capable of legal realization and enforcement." 2 T h i s being true, it goes without saying that words must always be taken inseparably with the sense they represent, 3 and interpretation must be considered as involving the undertaking of finding out that sense. Hence the process of interpretation is inherently indispensable from the very nature of the problem. Both the standard of interpretation and the sources of evidence warrant the act. Speaking of the interpretation of legal acts, W i g m o r e points out four different available standards, 4 the 1

See supra, p. 40.

'Wigmore, op. cit., vol. iv, sec. 2458, p. 3470. sIbid., p. 3470, n. 1, citing 22 How. St. Tr. 301: " Your lordships ask us, ' Whether the sense of the letter be matter of law or matter of f a c t ? ' W e find a difficulty in separating the sense of the letter from the letter. The paper without the sense is not a letter." lIbid., p. 3471: " First, there is the standard of the normal users of the

46

THE INTERPRETATION

OF

TREATIES

ascertaining of which, whether we are conscious of the process or not, naturally calls for interpretation. So far as the standard of an international agreement is a mutual standard of more than one party to a bilateral act, it seems necessary for those charged with the task of interpretation to exhaust all evidence from the prior and subsequent utterances of the parties so as to ascertain their fixed associations with the standards used. To say that a provision in controversy is " self-contained," or that it is not allowable to interpret what has no need of interpretation, causes a confusion of thought, and may serve to blockade the channel through which flows the stream of international justice. And yet even in our own days, courts of great repute occasionally indulge expressions of this kind. By way of illustration, it may be pointed out that in the well-known case of the 5". 5". Wimbledon decided by the Permanent Court of International Justice, the tribunal declared that " the provisions relating to the Kiel Canal in the Treaty of Versailles are therefore self-contained." 1 But it might be argued that in the matter of settling treaty disputes, no provision productive of controversy could be " self-contained." At any rate, even if it were, its significance would lie in the language of the forum, the community at large, represented by the ordinary meaning of words. Next, there is the standard of a special class of persons within the community—the followers of a particular trade or occupation, the members of a particular religious sect, the aliens of a particular tongue, the natives of a particular dialect, who use certain words in a sense common to the entire class, but different from that of the community at large. Thirdly, there is the standard of the specific parties cooperating in a bilateral act, who may use words in a sense common to themselves and unknown to any others. Finally, there is the standard of an individual actor, who may use words in a sense wholly peculiar to himself." A s treaties are commonly bilateral instruments, the contracting parties always exercise the widest latitude in choosing their common standard. 1

P u b . P. C. I. J . ( A ) , No. i, pp. 23-24.

See infra,

pp. 140-152.

THE NATURE

OF THE

PROBLEM

47

evidence that supported the interpretation, rather than in the mere introduction of a rule of literal construction. 1 According to Article 380 of the Treaty of Versailles, " T h e 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." As there was no specification regarding the applicability of the provision in time of war or in time of peace, the court held that the passage could not be more clear as indicating that the canal should be maintained free and open to the 5". 5". Wimbledon, which belonged to a nation at peace with Germany, and that " the terms of Article 380 are categorical and give rise to no doubt." 2 I n this connection it is interesting to observe that in the dissenting opinion, MM. Anzilotti and Huber followed a different course of reasoning. Those judges looked askance at literal interpretation, and in their attempt to search f o r the sense in which the provision was employed, did not hesitate to look beyond the text of Article 380, and to f o r t i f y their conclusions by extrinsic data. F r o m what is contained in their opinion, the following is especially worthy of n o t e : 3 Though it is true that when the wording of a treaty is clear its literal meaning must be accepted as it stands, without limitation or extension, it is equally true that the 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 ' " It is said," says Vattel, " that a man in England married three wives in order that he might not be subject to the penalty of the law, which forbids marrying two. This is, doubtless, a popular tale, invented with a view to ridicule the extreme circumspection of the English, who will not allow the smallest departure from the letter in the application of their law." 'Pub. P. C. I. J. ( A ) , No. 1, p. 22.

'Ibid., p. 36.

48

THE INTERPRETATION

OF

TREATIES

contradictory or impossible consequences or which, in the circumstances, must be regarded as going beyond the intention of the parties. The purely grammatical interpretation of every contract, and more especially of international treaties, must stop at this point. It is evident that the gist of such a statement challenges any attempt of literal interpretation as well as any general assertion that a treaty provision in controversy is " selfcontained." The dissenting judge seemed to ask the question : If Article 380 should be taken as " self-contained," how could it be applied in time of peace and in time of war as well ? Here indeed is an illustrative instance of the necessity of interpretation, because a shutting of? of explanations might lead to illogical consequences. Even if the article in question should be considered in its strictly literal sense, it would produce an embarrassing result, inasmuch as Germany as a belligerent would have to assume the obligation to allow the canal to be free and open to the vessels of neutral nations, an obligation that " is 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." 1 This case, therefore, illustrates the fact that in order to appreciate fully the nature of scientific interpretation, it is necessary to understand that interpretation is a part of the procedure of carrying out the contractual obligations, and any confusion of reasoning caused by rules of construction should be guarded against with utmost care. A s there will be occasion to discuss the S. S. Wimbledon Case more broadly from the angle of seeking evidence, suffice it to say for the moment that what has been touched upon bears testimony to the fact that in the matter of disputes over treaty stipulations, there is a constant necessity of interpretation. 1 Pub. P. C. I. J. (A), No. 1, p. 39-

THE NATURE

OF THE

PROBLEM

49

When the problem is viewed from another perspective, it is obvious that human language itself and human attempts in utilizing it to convey ideas cannot be so perfect as to be immune from ambiguity. The obscurity of sense may arise, either from an imperfect knowledge of the means of communication or from an imperfect application of that means, because no language can absolutely express all and everything that is to be expressed, and at the same time absolutely exclude everything else. Accordingly, it appears to be impossible for diplomats employing words and terminologies, even with their best intent and greatest care and skill, to foresee all future possible complications from the document. Granting that they could, they would not be able to draw out the preventive provisions which would be free from future diversification wrought by time and circumstance. Quite on the contrary, such a diversification would create a new situation or relation of things, which, in turn, would call for a choice between two alternatives, to give up the letter in the document or to give up the design of the document-makers sought to be exemplified by the document. Thus, once more the necessity of interpretation plainly exhibits itself. Even in the daily life almost every incident can be considered a good illustration of the truism of the necessity of interpretation.1 T o be sure, the necessity is because of the 'In this connection Lieber's interesting, convincing illustration is too tempting to deny a place here (Lieber, op. cit., pp. 28-30) : " Suppose a housekeeper says to a domestic: ' fetch some soupmeat,' accompanying the act with giving some money to the latter; he will be unable to execute the order without interpretation, however easy, and, consequently, rapid the performance of the process may be. Common sense and good faith tell the domestic that the housekeeper's meaning was this: 1. He should go immediately, or as soon as his other occupations are finished; or, if he be directed to do so in the evening, that he should go the next day at the usual hour; 2. that the money handed him by the housekeeper is intended to pay for the meat thus ordered, and not as a

THE

INTERPRETATION

OF

TREATIES

ambiguous signification of words themselves that the objects of the physical world, or attributes of the mental world, are not clearly differentiated from each other, as well as because of the fact that words themselves signify various things, sometimes more, sometimes less related with each other. But aside from these considerations, there is much to be said about the competence or mode of the persons framing the document.

In the matter of treaty-making it is not infre-

quent that those charged with the task either are unfamiliar with the subject dealt with, such as the attempt of drawing boundaries by streams which have not yet definitely been explored, or are hampered by external factors, such as caution, or decorum, which sometimes accord the negotiators great difficulties in putting the agreement in most lucid and plain terms.

For these and other reasons, treaties may

happen to leave out what is much to be desired; they constantly demand interpretation, and ought not to be taken as " self-contained " documents. In the case of Cayuga

Indians,1

it was contended by

present to him; 3. that he should buy such meat and of such parts of the animal, as, to his knowledge, has commonly been used in the house he stays at, for making soup; 4. that he buy the best meat he can obtain, for a fair price; 5. that he go to that butcher who usually provides the family, with whom the domestic resides, with meat, or to some convenient stall, and not to any unnecessarily distant place; 6. that he return the rest of the money; 7. that he bring home the meat in good faith, neither adding anything disagreeable or injurious; 8. that he fetch the meat for the use of the family and not for himself. Suppose, on the other hand, the housekeeper, afraid of being misunderstood, had mentioned these eight specifications, she would not have obtained her object, if it were to exclude all possibility of misunderstanding. For, the various specifications would have required new ones. Where would be the end? W e are constrained, then, always, to leave a considerable part of our meaning to be found out by interpretation, which in many cases must necessarily cause greater or less obscurity with regard to the exact meaning, which our words were intended to convey." •American and British Claims Arbitration Tribunal, Claim No. Award of Cayuga Indian Case (Washington, D. C., 1926), pp. 18-20.

6,

THE NATURE

OF THE

PROBLEM

51

the United States that according to the history of negotiations leading to Article I X of the Treaty of Ghent, the provision of said article was only " nominal," not intended to have any definite application, but rather " inserted to save the face of the negotiators." 1 As the detailed arguments will be analyzed in a later chapter,2 it is worthy of note in connection with the present topic that inasmuch as in the course of negotiating treaties diplomats or commissioners are often obliged to express their demands with moderation and courtesy, which cannot but lead to ambiguity, the contention of the United States was by no means as weak as the tribunal depicted it.3 If there was strong evidence pointing to the fact that for one reason or another, the provision of Article I X was actually " nominal" in nature, it would be injurious to justice to insist on giving the " nominal " provision a substantial enforcement. A s a matter of common reasoning, if a provision is designed to be nominal, its employment in a treaty is for a purpose other than which the 1 Article I X of the Treaty of Ghent, provides: " The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, 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." 2

See ir.fra, pp. 152-156.

'American and British Claims Arbitration Tribunal, op. cit., p. 19: " 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. W e cannot agree to such an interpretation. 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. W e are not asked to choose between possible meanings. W e are asked to reject the apparent meaning and to hold that the provision has no meaning. This we cannot do."

THE INTERPRETATION

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collection of words implies. Thus it really has a mission. In such a case, the non-enforcement of the provision amounts to carrying the mission out; the literal enforcement of the provision amounts to a regrettable departure from the true signification which the negotiators have undertaken to convey through the document. From the foregoing, therefore, it becomes clear that due to the very atmosphere surrounding treaty negotiations, words and provisions in an agreement may assume whatever shade of meaning the negotiators see fit. That this freedom in choosing a standard has a close causal connection with the necessity of interpretation is beyond doubt; that the act of ascertaining the right standard forms the initial step of scientific interpretation is equally obvious. In a word, the terms of a written instrument such as a treaty always call for interpretation, and any evasive confusion of thought— attributable to rules of construction—obstructing the process of interpretation, should be regarded as detrimental to the progress of justice and equity. H I . LATITUDE I N ESTABLISHING STANDARD

The necessity of interpretation may furthermore be explained by the extensive latitude acquiesced in by the society of nations as regards the establishment of various standards. In making the association between words and objects considered with reference to the parties fixing that association, the latter may always exercise great freedom. International law does not provide that certain words should be used as criteria of certain meanings. Nor does it prohibit the contracting states from employing whatever terminologies they themselves deem most expedient. As has already been pointed out, 1 standards of interpretation generally fall into four groups, namely, the popular standard, meaning the 1

Supra, pp. 45-46-

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common and normal sense of words; the local standard, including various special usages; the mutual standard, pertaining to the peculiar connotations agreed to by the contracting parties; and the individual standard, dealing primarily with unilateral acts. The contracting states are not fettered by any restriction in adopting any one of these standards when they have reasons to make their choice. They may employ words in a sense highly technical, purely colloquial or only mutually understood.1 In other words, all standards are open to the contracting states, but certain standards are actually resorted to by them. It is the ascertainment of the latter category that constitutes the initial task of scientific interpretation. That the common law does not accord such liberty to interpret legal acts can hardly be taken as defiant of the above principle. Thus the so-called rule against " disturbing a clear meaning," which has its peculiar origin and development, function and purpose, is wont to concede that 1 For instance, no third state would have a right to interfere with the liberty of two contracting states which employ terminologies of their own choosing. Suppose that a treaty of alliance between Russia and Japan reads : " in case one of the High Contracting Parties is attacked by China, the other shall offer an immediate assistance of 50,000 troops." But by a separate, confidential note of mutual understanding between the two contracting parties, it is provided: " the term ' 50,000 troops' employed in the treaty of alliance shall be taken to mean ' 100,000 horses' instead of 50,000 soldiers." Waiving the question of secret treaties, neither China nor any other member of the family of nations would, in such a case, have reason to complain that the term " troops " and the figure " 50,000 " had not been properly employed by Russia and Japan. And it may be doubted whether the stand taken by Mr. Justice Holmes in Goode v. Riley (153 Mass. 585; 28 N. E. 228) ought to be considered as applicable to the interpretation of treaties: " Y o u cannot prove a mere private convention between the two parties to give language a different meaning from its common one. It would open too great risks, if evidence were admissible to show that when they said five hundred feet they agreed it should mean one hundred inches, or that Bunker Hill Monument should signify the Old South Church. A n artificial construction cannot be given to plain words by express agreement." See Holmes, " The Theory of Legal Interpretation," 12 Harv. L. Rev. 417, 420.

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a word had better remain a fixed symbol—something inherent and objective rather than subjective and personal. In order to dissipate confusion of thought, it is profitable to examine in passing its history, note its decline, and indicate its unreasonableness when employed to m o d i f y the rights of states in their conclusion of international agreements. T h e development of the law of interpretation roughly marked the progress of legal thought from formalism to rationalism, and began from the days when the word of a man was considered in itself almost a magic formula. W h i l e such rigidity in interpreting documents was early known to the legal minds as contrary to reason, there were grounds which prevented it from immediate collapse in the judicial world. T h e jury system, for instance, had much to do with the tardiness of reform, because there existed a tendency for the judges to reserve the freedom of construction to themselves, rather than to leave the fate of a legal instrument with the jury, who might be incompetent to construe it. In this way the rigid adhesion to formalism was considered to be a safeguard against the inexpert reasoning of the jury. 1 A s a result, interpretation in those days was not approached from a desire for the ascertainment of the sense of terms employed by the framer of the document, but rather f r o m the black and white left behind him. In a case decided in the middle of the sixteenth century, the following sophistry was upheld by the c o u r t : 2 The party ought to direct his meaning according to law, and not the law according to his meaning; for if a man should bend the law to the intent of the party, rather than the intent of the party to the law, this would be the way to introduce barbarousness and ignorance and to destroy all learning and diligence. 1

See Wigmore, op. cit., vol. iv, sec. 2462, pp. 3476-3477.

Tkrockmerton v. Tracy, vol. iv, sec. 2462, p. 3477. 3

Plowd. 160, quoted in Wigmore, op. cit.,

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For if a man was assured that whatever words he made use of, his meaning only should be considered, he would be very careless about the choice of his words, and it would be the source of infinite confusion and uncertainty to explain what was his meaning. To escape from this notion was a slow process. All through the eighteenth century, the conservative jurists were obstinately clinging to their rigid tradition in various judicial utterances. During the nineteenth century, however, the swing of the pendulum began to draw its arc against stern interpretation, and the judicial world began to lose the extreme rule which its tradition had hitherto cherished. The concession so made was that if the meaning was " plain " no deviation of interpretation would be allowed. This marked the advent of the so-called rule against "disturbing a clear meaning," which tinged with the old formalism is now still prevailing in many a court, national or international. The mischievous nature of the rule lies obviously on the surface. It is still, as was the antique rule, based on the false premise that language can be perfectly identical with human thought. That one term may be very plain under certain circumstances, but very obscure when those circumstances no longer exist; or that certain provisions in a contract may be very plain to one party, but quite ambiguous to the other, is almost a truism which no scientific mind will fail to recognize. The " plain meaning," therefore, may not at all represent the real signification of the term as employed by the framers of the document. And yet it is the design of the latter instead of the meaning of the words —however plain it is—that the interpreter should undertake to ascertain. Moreover, considering the question from the practical point of view, it can hardly be refuted that standards, not plain to outsiders, are constantly employed

56

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ir. one's daily life. It is no surprise to the modern industrial world that private cipher-code help to dispatch messages directly contrary to what the words plainly indicate, and that for those who are speculating in the stock market the word " buy " is often agreed to mean " sell," and vice versa. Thus the consequence of following the plain meaning in such cases is obviously damaging. Here, once again, it shows the justification in condemning such statements as that a provision is " self-contained " and that " it is not allowable to interpret what has no need of interpretation." 1 The decline, however, of the relic of formalism as manifested by the rule against "disturbing a clear meaning" may be traced back to the middle of the last century.2 Since then there have been spasmodic judicial utterances upholding the liberal view in adopting standards, and helping to wear away the soil upon which the tree of formalism has flourished. Nevertheless, the root of the antique rule is centuries old, massed with court decisions, and the centrifugal force of reform, pulling against the centripetal force of tradition, needs time in which to acquire the necessary momentum to usher in the new era when scientific principles will completely replace dogmatic rules in the art of interpretation. But the progress of interpretation of treaties based on 1

Cf. supra, pp. 40, 44-45.

Brown v. Byrne, 3 E. & B. 703, quoted in Wigmore, op. cit., vol. iv, sec. 2462, p. 3482: " Neither in the construction of a contract among merchants, tradesmen, or others, will the evidence [of a local usage] be excluded because the words are in their ordinary meaning unambiguous; for the principle of admission is that words perfectly unambiguous in their ordinary meaning are used by the contractors in a different sense from that. What words more plain than ' a thousand,' ' a week,' ' a d a y ' ? Y e t the cases are familiar in which ' a thousand' has been held to mean ' twelve hundred,' ' a week,' ' a week only during the theatrical season,' ' a day,' ' a working day.'" 2

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evidence rather than rules ought to meet with less obstruction, because the freedom of nations in choosing standards in their conclusion of agreements enjoys a far wider range. While national legislation sometimes imposes restrictions to the effect that private individuals may not have the unqualified privilege of employing standards at their will, the law of nations fortunately leaves such freedom to the contracting nations themselves. The only limitation upon the latter is probably that in employing any special standards the contracting states should have them commonly, not singly, understood. In other words, treaties, unlike unilateral acts, require that the understanding of the parties should be mutual. It is the task of the interpreter to recognize the signification of the agreement with this limitation, because if an international stipulation was affected by t w o or more individual standards the substance of the agreement would certainly become a bone of future contention. Thus, in the case of the Heirs of Jean Maninat/ umpire Plumley declared that " A treaty is a solemn compact between nations. It possesses in ordinary the same qualities as a contract between individuals enhanced by the weightier quality of the parties and by the greater magnitude of the subject-matter." Just as in a private instrument, a treaty, in order to be binding, requires a mutual assent, and this assent demands a mutual standard of interpretation. T h e contents of agreements, proceeded the learned umpire, " can never be what one party understood but it always must be what both parties understood to be the matters agreed upon and what in fact was the agreement of the parties concerning the matter now in dispute." Similarly, in respect to the case of United States v. Arredondo,2 Professor Moore said 'Ralston, Report of French-Venezuelan Mixed Claims Commission of

1902, S. Doc. No. 533, 59th Cong., 1st Sess., 73. 2 6 Pet. 691.

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that " when a treaty is executed in more than one language, each language being that of a contracting party, each document, so signed and attested, is to be regarded as an original, and the sense of the treaty is to be drawn from them collectively." 1 All of these assertions, however, do not in any way affect the freedom of contracting nations in adopting standards they jointly deem desirable. T o understand the nature of the problem of scientific interpretation requires a thorough comprehension of this fact, which, in the course of ascertaining the true sense of terms employed in treaties, helps the interpreter to go beyond the surface meaning of the document and to be ever ready in accepting extrinsic evidence. IV. DIFFERENCE BETWEEN SENSE AND VOLITION

In ascertaining the standard of interpretation, confusion of thought over terminologies, such as between " meaning " and " intention," should be guarded against with great care. Is the task of interpretation aimed at ascertaining the " meaning " or the " intention " of the contracting states? Will the interpreter try to discover the particular intent of the negotiator, to get into his mind, and to bend what he agreed upon to what he wanted ? And, at any rate, does " meaning " essentially differ from " intention " ? Such are the mischievous questions which have puzzled many a judicial mind. Some writers think that the standard to be ascertained is the " meaning " of the words of the treaty, and others believe that it is the " intention " 1 5 Moore Dig. 252. Quoting the views as expressed in the communication from Mr. Hay, Sec. of State, to Mr. Beaupré, No. 331, Nov. 16, 1900, MS. Inst. Colombia, XIX. 123, Professor Moore also said: " Where treaties are drawn up in two languages each text is considered as the equivalent of the other and as being in a sense explanatory of it. Thus interpreted the two texts have a common meaning. Both parties to it stand on a footing of equality, and the object sought to be attained by them is accomplished," S Moore Dig. 252. See 4 Moore Arb. 3616, 3623. See also Society for the Propagation of ihe Gospel v. The Town of New Haven, 8 Wheat. 464; Corneal v. Banks, 10 Wheat. 182.

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of the contractual parties. A third group, moreover, uses the two terms interchangeably, causing a situation which is often extremely unfortunate. 1 But in the course of interpretation courts often emphasize the fact that it is the agreement made by the parties, not by the court, that is the subject of interpretation, and any additional, new provisions not intended by the parties should not be considered as forming part in the stipulations.2 All these expressions indicate, though in varying degrees, the defective, uncertain connotations of " meaning " and " intention," and a pair of more distinctive terms should be used to designate the opposing characteristics appertaining to those confusing symbols over which jurists have been in constant dispute. For the sake of meeting this need, Dean Wigmore has coined the terms " sense " and " volition " to replace the easily confused terms " meaning " and " intention." With this general distinction properly understood, it becomes easier to discuss the principles involved in ascertaining the standards of interpretation. In order to appreciate the difference between " meaning " and " intention " it must ever be borne in mind that many judicial utterances employ the term " intention " as a designation of what the contracting parties meant to, but actually did not, put in the agreement, and employ the term " meaning " in order to refer to what the contracting parties intended to, and actually did, put in the agreement. Such 1 Mr. Justice Gray declared, in Jones v. Meehan, 175 U. S. 1, 11 : " The treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in -which they would naturally be understood by the Indians. Worcester v. George, 6 Pet. 515 ; The Kansas Indians, 5 Wall. 737, 760; Choctaw Nation v. United States, 119 U. S. 1, 27, 28." See United States v. Rauscher, 119 U. S. 407. Cf. In re Meredith, 11 Ch. D. 739 ; Smith v. Lucas, 18 Ch. D. 542. 2 See The Amiable Isabella, 6 Wheat. 1 ; N. Y. Indians States, 170 U. S. 1. See also Scott, Cases on International Paul, 1906), pp. 426-7, n. 1.

v. United Law ( S t

6o

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explanations may be at times reasonable, but the probability of misleading the judgment of subsequent interpreters is indeed great. The root of confusion lies in the fact that both the term " meaning " and the term " intention " bear some suggestion of the state of mind of the contractors as fixed on certain objects and obligations. But the terms " volition " or " will," and " sense " serve to avoid this confusion inasmuch as " they emphasize the distinction that the will to utter a specific word is one thing, and the fixed association of that word is another thing." 1 Put in other words, they point out the difference between the making of the instrument and its interpretation as made. By way of illustrating this distinction attention may be called to the following statement of Mr. Justice Brown found in the well-kown case of Tucker v. Alexandroff:2 Upon general principles applicable to the construction of written instruments, the enumeration of certain powers with respect to a particular subject matter is a negation of all other analogous powers with respect to the same subject matter. Ex parte McCardle, 7 Wall. 506; Endlich on Stats., sees. 397, 400. As observed by Lord Denham in Aspdin v. Austin, 5 Ad. & El. (N. S.) 671, 684, " Where parties have entered into written engagements with express stipulations, it is manifestly not desirable to extend them by any implications; the presumption is that, having expressed some they have expressed all the conditions by which they intend to be bound under that instrument." The rule is curtly stated in the familiar legal maxim, expressio unius est exclusio altcrius. Here the basic argument for the " negation of all other analogous powers " because of " the enumeration of certain powers " in the instrument, seems to indicate that the inter'Wigmore, op. cit., vol. iv, sec. 2459, p. 3473. 2

183 U. S. 424, 436. For an illuminating illustration that the maxim expressio unius est exclusio oltrrius must not lie depended upon as a rule ot construction, see Ford v. United Slates (47 Sup. Ct. 531).

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preter should not go beyond what was the sense of terms employed by the negotiators of the treaty, and consequently he should not give additional consideration to what the parties willed to include, but did not actually put, in the instrument. In this connection, a most delicate situation arises which requires great care to understand, namely, the situation of discriminating between the negotiators' " volition " supported by extrinsic evidence and that not supported by extrinsic evidence. Hence in determining the " sense " in which the terms are employed by the individuals it is the paramount duty of the interpreter to scrutinize all data and facts and to examine all sources of evidence, before drawing the conclusion that this or that is the actual " sense ". This special aspect of the nature of the problem of interpretation will, however, become more clear when the freedom in searching for evidence is discussed. For the present it is necessary to see further the distinctive features of the terms " volition " or " will and " sense " . Suppose a Chinese student, in trying to learn Spanish, agrees beforehand with his teacher that only Spanish should be spoken during the hours of having the lessons. Here, of course, Spanish is the common standard in the course of conveying ideas, and the private " intent " or " volition " to speak Chinese on the part of the student should not at all be taken into consideration. 1 It then becomes obvious that the " sense " agreed upon between the two forms the verbal contract, and the " volition " entertained by one party has nothing to do with the mutual standard employed but at times serves to conceal it from the eyes of a third individual. Such an analogy, simple though it may be, illustrates how fundamental is the difference between " sense " and " volition," and reveals the significant concept that interpretation deals with the " s e n s e " of the word con1

Cf. Wigmore, op. cit., vol. iv, sec. 2459, pp. 3473-4.

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sciously employed, and not with the speculative " w i l l " to employ a signification which has not been accepted by another party. T o state it differently, the " volition " or " will " of one party may be irrelevant to the agreement, while the " sense " of terms agreed upon by the contracting parties always accords the fixed association between the words uttered and some external object or obligations for which the agreement has been made. In making international agreements, therefore, no state can reasonably demand of another state an obligation under the pretense of its own standard based on its individual " volition ". " It may be that while certain expressions are used in a particular sense, a contracting state has in fact given its consent with the design of accomplishing a purpose hostile thereto. Proof of such an intention is not decisive of the rights of the parties under the agreement." 1 Ordinarily, a word may be used in several ways because it has several meanings, even in the dictionary. But the agreement concluded between nations is, theoretically, the sum total of the mutual " senses " of all the words, to which the negotiators assented. In other words, an agreement should be viewed as having been made by the negotiators in the light of what they know they have agreed upon rather than what they wish they might have agreed upon. The "sense" in which the words have been used by the negotiator deals with the association between words and external objects, but his " intention " deals with nothing more than his state of mind at the time of negotiation. In ascertaining the genuine standard of interpretation, therefore, the interpreter is charged with the duty to discover not what the negotiators have willed or intended to agree upon, but what is the " sense " which they have actually attached to the terms of the agreement. T o be sure, this does not signify, as is 1

H y d e , op. cit., vol. ii, p. 64.

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sometimes supposed, that the interpreter has only to discover the meaning of the words used in the agreement. A s has been pointed out, the same words may be employed to convey different meanings by different negotiators, or by the same negotiators under different circumstances. The problem of interpretation in this connection is to discover in which of the senses have the negotiators actually used the term. 1 It goes without saying that in order to appreciate fully the significance of the distinction between " sense" and " volition," and to take due precautions against a confusion of thought in undertaking scientific interpretation, the interpreter should firmly bear in mind that the standard to be ascertained is neither the mere lexicographical and grammatical " meaning " of the words, nor the " volition " of the negotiators in general, which they have not expressed in the agreement, but rather the fact as to the " sense " of the words as actually used by them upon the particular occasion. T o ask what is the "sense" of the words of the negotiators, or what " sense" did the negotiators actually agree to attach to their words might be helpful in conceiving the nature of the problem under discussion. More than thirty years ago, Professor Charles A . Graves, of the Law School of Washington and Lee University, Lexington, Virginia, read a paper before the Virginia State Bar Association, in which the differences between "sense" (which he called " the meaning of the words as used by the writer " ) and " volition" (which he called " the meaning of the writer " ) was vividly drawn. In view of the great lucidity in illustrating the point in question, his statement is worthy of note: ' 1 See Phipson, " Extrinsic Evidence in A i d of Interpretation," loc. ext., pp. 247 et seq.

' See Graves, " Extrinsic Evidence in Respect to W r i t t e n Instruments," 28 A m . L. Rev. 323. I t is important, however, to observe that the interpreter ought not to overlook the popular signification of the term " in-

64

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What is it that the judicial expositor seeks to ascertain—is it the meaning of the words or the meaning of the writer? The question is frequently put in this way, as if the disjunction were complete, and the answer must be either the one or the other. We answer, neither. Not the meaning of the words alone, nor the meaning of the writer alone, but the meaning of the words as used by the writer. It is not the meaning of the words in the abstract, for the meaning of words varies with the circumstances under which they are used; and not the meaning of the writer apart from his words, for the question is one of interpretation, and what the writer meant to have said, but did not, is foreign to the inquiry. . . . We must seek the meaning of the writer, but we must find it in his words; and we must seek the meaning of the words, but it must be the meaning of his words. Having thus distinguished the term " sense " from the term " volition," the next question may be asked, How can the interpreter best ascertain the standard which identifies the " sense " in which negotiators have applied the words in a treaty? The answer is that he will have to search from various sources for evidence. While to analyze all the data and facts cognate to extrinsic evidence requires great care and patience, fortunately in doing so international law does not restrict the interpreter's freedom. V. FREEDOM OF SEEKING EVIDENCE

In the old days the traditional view of interpretation provided not only that the sense of words and terminologies should invariably be determined by a narrow latitude of legal usage, but also that whatever was to be employed in ascertaining the right standard should be extracted from the tention" in certain disputes over treaty interpretation. In every case, it is his duty to orient the position and signification of that misleading term, and to give proper consideration thereof in the course of ascertaining the true standard of interpretation.

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document itself. T h e words were supposed to be definite in meaning, and in interpreting them the interpreter should not invoke assistance from evidence external to the literal provision of the agreement. In other words, a legal instrument had to " speak " for itself, and if it could not do so itself, no extrinsic evidence should be admitted to do so in its stead. But as the antiquated rule gradually yielded to the rational rule which permitted wider latitude in establishing standard, judicial minds began to question the dogma of prohibiting extrinsic evidence; 1 and by the time when the truth of the constant need of interpretation was justly appreciated, the new spirit that " words must be translated into things and facts " 2 created a different trend of legal thought, admitting freely extrinsic matters for the interpretation and enforcement of an agreement. The convincing words of Dean Wigmore read: * Once freed from the primitive formalism which views the document as a self-contained and self-operative formula, we can fully appreciate the modern principle that the words of a document are never anything but indices to extrinsic things, and that therefore all the circumstances must be considered which go to make clear the sense of the words,—that is, their associations with things. W h i l e the freedom of seeking extrinsic evidence is thus set forth, the question is often asked why the practice has 1 See 1749, Goodinge v. Goodinge, 1 Ves. 231; 1750, Hampshire v. Pierce, 2 Ves. 216; 1785, Fonnereau v. Poyntz, 1 Bro. C. C. 472; 1816, Doe v. Chichester, 4 Dow. 65, 93; 1821, Doe v. Benson, 4 B. & Aid. 588; 1822, Colpoys v. Colpoys, Jac. 451, 456; Shelburne v. Inchiquin, 1 Bro. C. C. 338, 341; 1839, Bradley v. Steam Packet Co., 13 Pet. 89, 99. Cited in Wigmore, op. cit., vol. iv, sec. 2470, pp. 3498-9.

' Doherty

v. Hill,

144 Mass. 468, 11 N. E. 581.

"Wigmore, op. cit., sec. 2470, p. 3499. ii, p. 63, n. 2.

Quoted in Hyde, op. cit., vol.

66

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been so slow in gaining recognition. It is true that the Roman law took into consideration a direct declaration in aid of interpretation, and that, in dubious cases, the early English Equity Courts did likewise, but according to the Common L a w Courts, declarations of intention could not be taken as evidence in support of ascertaining standard, except in cases of equivocation. Such an exclusion of extrinsic evidence, though obstructing the progress of the modern principle, was nevertheless not arbitrary. It was chiefly due to the fear that declarations of intention might be fabricated, retracted, or misquoted, and that the aspect of contradiction they seemed to bear to the document under consideration might prove dangerous to the jury, who, not being trained legally, might attach to them too great importance. 1 T h e restrictions, however, are independent of the principle stated, and the current of the judicial stream is undoubtedly flowing toward the rational, scientific view, conceding ample freedom to invoke extrinsic evidence. In the matter of interpreting international agreements, furthermore, the reasonableness of the modern principle is still easier to conceive. A s treaties are supposed to be interpreted by jurists of competence, be they sitting in international courts, or arbitral tribunals, or even acting in the capacity of individual arbitrators, the danger of attaching too great weight to extrinsic evidence is certainly negligible if not absolutely non-existent. Consequently, scientific interpretation warrants a thorough search of the circumstances under which a treaty has been signed; it demands a careful examination of the contemporaneous declarations and prior negotiations, out of which the agreement has resulted. Fortunately, very seldom does the interpreter find that evidence of such nature is beyond reach of the parties, at any rate, 1 Hyde, cp. cit., vol. ii, p. 68. loc. cit., p. 337.

S e e Phipson, loc. cit., p. 253; Graves,

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when the subject of interpretation concerns a treaty not antedating the nineteenth century. 1 Even if the controversy is of old standing, there is usually some light, which may be obtained by a careful search for extrinsic evidence, but which may be excluded by arbitrary rules of construction. It is sometimes contended that since the object of a treaty is to record the final and mutual sense of the parties expressed by words in the written instrument, prior negotiations are merged therein and cannot be resorted to in aid of an interpretation contradictory to the plain terms. Besides, the purpose of the agreement may have undergone some radical changes during the course of negotiation, and an invocation of the views of the negotiators and papers exchanged before the conclusion of the treaty may lead to unjustifiable consequences. What is more important, so the argument goes, is the fact that treaties are concluded between states rather than between the negotiators who are only representatives of the contracting parties, and that the utterances of the latter have no legal strength in contradicting any provisions of the final agreement. 2 Such an argument sounds plausible, but its fallacy is obvious. T o be precise, it is but another simple manifestation of the incorrect traditional belief that language is fixed in meaning, and words are perfect symbols to convey human ideas in perfect form. As has been noted, the chief purpose of interpretation is to ascertain the sense which the parties sought to attach to the specific words in the agreement. Reason demands that surrounding circumstances should be allowed to solve the task, which cannot be solved by extracting doubtful meanings from imperfect words. In consequence, the value of declarations of negotiators should be keenly appreciated by jurists as a fountain of extrinsic evidence, and 1

Hyde, op. cii., vol. ii, p. 62.

* C f . Crandall, op. cit., p. 377.

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should be frequently resorted to by courts of arbitration in the course of interpretation.1 Moreover, the necessity of seeking extrinsic evidence in the course of ascertaining standard may be illustrated from the task of interpreting human language itself. Just as the agreement-makers should feel free to employ terms in any sense, so should the agreement-interpreters feel free to invoke any evidence for the purpose of ascertaining that sense. The foregoing discussion has touched on the extensive latitude conceded to negotiators in selecting standards, and the good reasons for that concession. Naturally, it would be unreasonable as well as inconsistent to advocate, on the one hand, freedom in employing words in any mutual sense the contracting parties see fit, and yet to restrict, on the other hand, freedom of search for whatever evidence sheds light on the correct standard. So important a place does extrinsic evidence occupy in aid to legal interpretation that the whole principle of Falsa demonstratio non nocet2 is based on its recognition. While the latter maxim is commonly cited in support of interpretation of contracts, wills, and statutes,3 it is not to be doubted that its application, if truly conceived, is appropriate to international agreements.4 Not only it is impossible for the symbolic words in a written document to bring 1

See infra, pp. 156-167, 171-192. 'See Bacon, "Maxims of the Law xxiv," Works, Spedding's ed. (New York, 1872), vol. xiv, pp. 267 et seq.; Broom, A Selection of Legal Maxims, 6th ed. (London, 1884), pp. 584 et seq. See also Lord Kenyon, C J. 6 Term, 676; Park B. 11 Mees. & Wels. 189; Story, J. 2 Story 291, 6 Hill. (N. Y.) R. 616. ' See State v. King, 28 Cal. 265; Chambers v. State, 25 Tex. 307; State v. Orange, 3 Vroom, 49; Commonwealth v. Marshall, 69 Penn. St. 328; People v. Clute, 63 Barb. 356. See also Matthews v. Commonwealth, 18 Gratt. 989; Pond v. Maddox, 38 Cal. 572; Jenks v. Langdon, 21 Ohio (N. S.), 362; United Slates v. Stern, 5 Blatchf. 512. 4

See sut>ra, p. 38.

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69

about a complete enumeration of all the attributes of a human idea, but the interpreter of a treaty has also to be confronted with the fact that a false designation may sometimes occur in various forms, f o r example, clerical mistakes, inaccurate translation, and the like. 1 Obviously, justice demands that any erroneous provision should not be dealt with as it is literally. There should be given due consideration of all the extrinsic facts and circumstances, indicating the true sense which the contracting parties have undertaken to convey through the agreement. It seems logical enough to allege that since the plenipotentiaries have been entrusted with the responsibility of negotiating a flawless treaty, any mistake they have made they must suffer the consequences of their own carelessness or incapability. But such a contention is not well founded. In the first place, since language is imperfect, mistakes should frequently not be taken as indicative of the incompetence of the negotiators. It is the function of the interpreter to ascertain the genuine sense in which the negotiators have employed the words rather than to ascertain the bare meaning of the words themselves. I f the document is approached from the provisions per se, it is not rightly approached, because in dealing with the erroneous terms of the agreement, the words causing the mistake cannot be overthrown from within, so to speak. F o r this reason, the wide range of freedom in searching f o r extrinsic evidence is imperative f o r scientific interpretation. In the second place, from the very nature of the term ' S e e Oppenheim, International Lazv (London, 1905), vol. i, pp. 561-2: " If there is a discrepancy between the clear meaning of a stipulation, on the one hand, and on the other, the intentions of one of the parties declared during the negotiations preceding the signing of a treaty, the decision must depend on the merits of the special case. I f , for instance, the discrepancy was produced through a mere clerical error or by some other kind of mistake, it is obvious that an interpretation is necessary in accordance with the real intentions of the contracting parties."

' THE INTERPRETATION

OF

TREATIES

" sense " as it has been defined, any imperfect surplusage of description must, as a matter of course, be interpreted by extrinsic evidence. It will not be the " sense " that the parties have undertaken to express by the erroneous words, if interpretation is purely based on what are the literal meanings of the words. VI. SPURIOUS

INTERPRETATION

A question of perplexity is occasionally asked, namely, " Is interpretation also a step in making the instrument interpreted?" In other words, when international disputes over treaty interpretation are brought up to a tribunal, will judges or arbitrators be accorded an opportunity to make law or merely to apply it? Bishop Hoadley once remarked that " whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes." 1 But that such a view should not be applied to the interpretation of international agreements is not only because of its questionable premise, but also because of the evil effects of certain arbitrary applications of presumptive rules, which may be termed spurious interpretation.2 If it is conceded that judges of an arbitral tribunal should be given a right not only to carry out the terms of the agreement in dispute, but also to build up an edifice of their own by applying rules of construction without sufficient evidence, 1 Bishop Hoadley, " Sermon preached before the King, 1717," Works, 15th ed., p. 12. See Gray, Nature and Sources of the Law (New York, 1909), pp. 100, 120.

' See Austin, Lectures on Jurisprudence, 3rd ed. (London, 1869), p. 1028, where the term is coined in connection with interpretation of private instruments. As in the course of interpreting treaties the dangers of spurious interpretation through rules of construction is greatly aggravated, its fallacies should be clearly borne in mind and its mischiefs as contrasted with the legitimate function of the principle of uberrima fides should be always recognized.

THE NATURE

OF THE

PROBLEM

71

they will possess a privilege superior even to that of the plenipotentiaries of the parties responsible for making the agreement. In such a case men of subtle minds would be given a chance to stretch the standard of interpretation, and those charged with the task of interpretation would be free to distort the issue even to the most unnatural shapes, and cripple where they had sought only to adjust its proportions according to their own arbitrary opinions.1 Scientific principles based on ascertaining true standards and exhausting all alleys of evidence stand on just the antithetic plane with respect to such a procedure, and any confusion of thought over this distinction will obstruct the clear understanding of the nature of the problem of interpretation. It is often alleged that " where judicial interpretations of the law extend to merely the case before them, judges do not make law. Where their opinions furnish precedents for the future they do." 2 But such a contention can scarcely be considered as answering the question raised. Nor should it be thought of as a reasonably decisive attitude taken towards the interpretation of treaties. If, in deciding a case of treaty dispute submitted to arbitration, the arbitrator furnishes a precedent for the future, he is not responsible for future judges who will cite his decision. Nor does he manipulate to have his own decision recognized as law for application to future cases.3 T o say that arbitrators in 1 See Story, Commentaries on the Constitution of the United States (Boston, 1873), vol. i, sec. 454, p. 335. See also Cherokee Nation v. Georgia, 5 Pet. I, 19.

' Wright, The Control of American Foreign Relations 1922), p. 64.

(New York,

s It is worthy of note that while an interpretation rendering the controversy res judicata certainly does not assume a legislative character, the principle stare decisis is neither applicable to arbitration nor dependable for aid in the interpretation of treaties. See the Pious Fund Arbitration Case, where the court declared: " Considering that all the parts of the judgment or the decree concern-

THE

INTERPRETATION

OF

TREATIES

a judicial tribunal make law " where their opinions furnish precedents for the future " does not furnish valuable aid to the task of treaty interpretation, because the function of the interpreter is to delve into the various sources of evidence cognate to the individual case rather than to arrive at conclusions by virtue of judicial opinions rendered in other cases. Consequently, whether or not the opinion of the interpreter assumes a legislative character without the scope of the case interpreted is not the question properly under discussion. In cases where the exhaustion of evidence seems to j u s t i f y the interpreter in invoking the doctrine of uberrima fides,1 especial care should be taken to guard against spurious interpretation in doing its mischief. A n y confusion of thought over the effort to prevent the latter will lead to illogical paths of reasoning directly in violation of the scientific principles of interpretation. T o those who believe in the efficacy of rules of construction, spurious interpretation might appear to be entirely reasonable inasmuch as the application of such rules frequently produces the correct result. While any scientific procedure should forbid such an expediency as letting two wrongs make one right," rules of construction are unfortunately so abundant in the pages of publicists that a mere application of one, or a shrewd combination of two, of them may yield almost whatever conclusion the interpreter desires. It is, therefore, the paramount duty of the student of international law to take precautions against the dangers of such rules, to take coging the points debated in the litigation enlighten and mutually supplement each other, and that they all serve to render precise the meaning and the bearing of the dispositif

(decisory part of the judgment) and to deter-

mine the points upon which there is res judicata can not be put in q u e s t i o n ; . . . " [Boston, 1915], p. 9). 1

See infra,

pp. 203 ct scq.

(Wilson, The

and which thereafter

Hague

Arbitration

Cases

THE NATURE

OF THE

PROBLEM

73

nizance of the significant place of the doctrine of uberrima fides, and not to let the evils of legislative influence unwarranted by evidence be filtered either through the mind of clear thinking or under the shield of rules of construction. Nevertheless, the occasional indulgence in spurious interpretation over treaty disputes on the part of some jurists is no mere accident. It is based on the analogy to what happens in the periods of civil development when law is expanding through juridical speculations, and when the familiar saying that the relation of law to morals is the Cape Horn of Jurisprudence 1 helps to lend space to those who are wont to invent arbitrary canons. In interpreting private instruments, judges, in extraordinary cases, may have to make as well as administer law in " conformity to the de facto wishes of the dominant forces of the community," 2 but in interpreting treaties it is often extraordinarily difficult to ascertain what are the de facto wishes of the dominant forces of the contracting parties as well as of the community of nations in general. Thus, it would be scarcely appropriate for the interpreters of international stipulations to exercise any legislative authority through rules of construction or without proper evidence to warrant it, and under the sheer guise of what they might term moral obligation, justice or equity. 8 1

See Pound, " Spurious Interpretation," 7 Col. L. Rev. 379 et seq.

2 Ibid., 3793 Cf. the stand taken by the tribunal in the Cayuga Indians Case (American and British Claims Arbitration Tribunal, Claim No. 6, Award of Cayuga Indians Case [Washington, D. C., 1926] p. 9 as regards the interpretation put on the term "general principles of justice and equity." It was declared: "American Courts have agreed from the beginning in pronouncing the position of the Indians an anomalous one. Miller, J., in United States v. Kagama, 118 U. S. 375, 381. When a situation legally so anomalous is presented, recourse must be had to generally recognized principles of Justice and fair dealing " See infra, pp. 152 et seq.

74

THE INTERPRETATION

OF

TREATIES

But, as has been noted, in all the written instruments, public or private, there is a constant necessity of interpretation. Although negotiators of international agreements attempt to do away with all need of interpretation, even the best treaty ever framed cannot but leave the whole matter of interpretation an inevitable task, and thus manifest the incontestable fact that any effort to tie down future generations by a perfect and authentic extemporaneous exposition is futile and inefficacious. For instance, the Prussian code promulgated by Frederick the Great had, as one of its objects, to avoid interpretation, but the effort met with no success. Napoleon, according to the Mémorial de St. Hélene by Las Casas, once thought and believed that all principles of law might be reduced to a few concise forms, which ought to be combined according to fixed rules, similar to those of mathematics, and that simplicity and certainty of law might thus be secured; but no sooner did he come to discuss the different phases of the French civil code than it was brought to light that his fancies could scarcely be realized.1 Thus, it goes without saying that in a written instrument there is always a good deal left out at one of the points of contact between law and morals, which demands interpretation. But it is precisely at this point of contact that the interpreters should employ full diligence and care in ascertaining all the standards involved, uncovering all sources of evidence available and scrutinizing the issues with uberrima fides; it is at this point of contact that they should painfully avoid spurious interpretation based on a combination of canons, operating by side winds so as to bring about preconceived results which could not be attained directly. In other words, the purpose of spurious interpretation is not to discover the sense of a document but rather to make, unmake, or remake it without appropriate reasons substan1

See Lieber, Legal and, Political

Hermeneutics

(Boston, 1839), p. 41.

THE NATURE

OF THE

PROBLEM

75

tiated by facts and evidence, and by virtue of a set of selected rules of construction fortified by disconnected thoughts. Through such an application of rules, the cunning interpreter may put a meaning into the instrument interpreted much in the same fashion as a juggler puts coins into a dummy's hair, to be pulled forth presently with an air of discovery. The whole process, in fact, amounts to a fiction of legislation, which is once called " juristic chemistry " 1 because of its wonderful ways of bringing about preconceived results, and again known as " evasion " 2 because of its incapacity in dealing with the true facts. Although in an instrument of national concern there might be reasons of necessary expediency demanding its application, in the case of international agreements where such expediency may invite international injustice and war, its application is as dangerous as it is unscientific. While the pages of diplomatic history bear testimony that many a treaty dispute has ended in disaster and injustice because of the misguided passion to cloak expediency with spurious interpretation and to cloak spurious interpretation with the artificial, dogmatic rules of construction to the detriment of the existing relationship of nations, international courts and arbitral tribunals even of the present days are not free from the great temptation of invoking the speculative canons in their course of rendering decisions. But it is the privilege of students of international law to point out such fallacies, and to bear the burden of proof that rules of construction are not safe, and are among the most deadly of all the enemies against the scientific process of settling treaty disputes. 1

See Pound, loc. cit., p. 382. ' Bryce, Studies in History and Jurisprudence (Oxford, 1901), vol. i, p. 229.

THE INTERPRETATION VII.

OF

TREATIES

CONCLUSION

In the course of discussing the nature of the problem of interpretation, it has been observed first of all that interpretation is ever necessary because of the inherent imperfections of human language as well as of the inevitable working of time and circumstances. That the failure to see this on the part of the interpreters has caused considerable injustice to many nations in international disputes should undoubtedly be taken as a reason for the dire need of scientific principles. And yet it appears always easier to entertain the idea that such and such terms are simple enough to require no interpretation, than to recognize the philosophy that interpretation, being a part of the realization of the agreement, is always required in giving life to words. For this reason, the lure of rules of construction has been too great to resist, even for some of the leading jurists. Furthermore, the necessity of interpretation has been surveyed from considerations of the sentimental side of treaty negotiations, which often makes the parties refrain from stating too plainly what might constitute too pointed a wording. Diplomatic courtesy and decorum not infrequently deem it necessary to employ high-sounding, meaningless words that would easily cause contention in future times. This point may be readily illustrated by the anomalous friendliness in diction and in tone, which appears in the preambles of even treaties of the most obnoxious nature. And to see how ridiculous is the contrast between marshaling friendly words in the prologue and exacting ruthless terms in the text, one only has to turn to the pages of such documents as those forced upon one nation by another under military pressure. With the conviction of the necessity of interpretation firmly ascertained, an analysis of the nature of the two steps of scientific interpretation, namely, the latitude in establish-

THE NATURE

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77

ing a standard and the freedom of seeking evidence has been followed. In accomplishing this task, the principles of interpreting private instruments have been incidentally introduced just to illustrate the rational interpretation of treaties, and to point out wherein the traditional common-law rules are inappropriate to deal with international agreements. While space has not permitted detailed discussion of all the cases cited, the purpose of presenting the evolution of interpretation from "primitive formalism" to "scientific rationalism " has been carried out. Moreover, although the true principles involved in interpretation of private instruments do not differ from those involved in the interpretation of public stipulations, the brief review of the decline of the traditionalism in private law has been made not for the purpose of comparison with public law, but rather to help simplify the understanding of the fundamental reasons for permitting wide latitude in ascertaining the sense in which various terms are employed, and for granting ample freedom in seeking evidence thereof. Only with these preliminaries in mind may one find himself in a fit position to analyze the leading cases over treaty disputes, and to discuss the true principles of interpretation involved therein. Alongside of the presentation of the philosophy of ascertaining standard, the current confusion of thought over certain terminologies has been pointed out. While the reasonableness of the distinction between " sense" and " volition " may easily be seen, it ought not to be forgotten that the indistinct ways of employing the terms " meaning " and " intention " have been deeply imbued in the habits of the negotiators, and especial care should be taken in recognizing their true connotations. At the end of the chapter, attention has been called to the evil effects of spurious interpretation under the guise of rules of construction. Of course, its direct contradiction to

THE INTERPRETATION

OF

TREATIES

the principles of ascertaining standard and exhausting evidence is too obvious to mention, but what is worthy to repeat is the danger it exposes to the minds of the interpreters when evidence appears to be lacking and rules of construction seem to be most opportune for application. For this very reason, interpreters should be exceedingly careful in drawing the distinction between spurious interpretation and the doctrine of uberrima fides. The abuse of the latter may be easily experienced, if the basic principles of interpretation are not thoroughly understood. Thus the nature of the problem of interpretation has been surveyed by presenting the salient principles, as well as the several cognate topics of great import. There remains for the following pages an examination of these principles inductively and analytically. Instructive cases of various courts and arbitral tribunals will be scrutinized, so that the fundamentals of ascertaining standard and exhausting evidence may be most vividly brought out, and the distinction between the so-called rules of construction and the doctrine of uberrima fides may be best comprehended.

CHAPTER III THE

S T A N D A R D OF I.

INTERPRETATION

INTRODUCTORY

the foregoing comment on the nature of the problem, it seems to be clear that the fundamental principles of interpretation involve two characteristic steps, namely, the ascertaining of the standard, and the searching for the sources of evidence. In this and the following chapters these two steps will be respectively treated with the purpose of demonstrating the validity and justification of each step through instructive cases. While the task of ascertaining standard is a simple one, many a judicial utterance has failed to accord justice simply because of the erroneous conception of what the genuine standard designates. To the group of conservative minds the function of the interpreter is to ascertain the meaning of the words that appear in the documents; to the group of radical thinkers it is to vouch for the volition of the contracting states. Prompted by these two opposing conjectures, sundry rules of construction are ingeniously instituted, which easily lead to two irrational extremes. Obviously due to the inevitable imperfection of human language, mere words of any writing, literally expounded, will go a very little way toward reaching the sense which the contracting parties attached to the terms. On the other hand, due to the very nature of what a treaty purports to carry out, any effort toward determining the volition of the parties will virtually pervert interpretation of the treaty to the making of an unilateral act. In other words, either what FROM

79

8o

THE

INTERPRETATION

OF

TREATIES

the parties may have willed to mean, or what the dictionaries and grammars may have declared the terms to mean ought not to restrict the freedom of the interpreter in seeking to ascertain what the parties have actually agreed upon by employing certain mutual standards in the agreement. Thus speaking on the non-liability with respect to the acts of insurgents, umpire Plumley tersely declared in the Aroa Mines Case t h a t 1 there is not the slightest evidence which the umpire has been able to find that Venezuela knew of any other, thought of any other, or consented to any other grounds or reasons. This is the important question, for when there is found that which Venezuela or her representatives understood and consented to and understood that they consented to, then there is found all there is of the treaty. In dealing with the topic of interpretation, moreover, many a writer calls attention to certain cases, and comments on them as to whether they are illustrative of certain rules of construction. This, to be sure, is not the procedure followed by the new school of interpretation which recognizes no rules. W h a t this chapter undertakes to present is an analysis of certain instructive cases with the expectation of deducing a few essential concepts governing the ascertaining of the standard, and parenthetically to point out the dangers and fallacies of certain rules of construction. It is not suggested that an exhaustive study or complete digest of all instructive cases is here attempted. Nor in thé course of surveying judicial decisions is any discrimination made between courts making those decisions. Nevertheless, in view of the fact that many of the utterances and opinions of international courts and arbitral tribunals have touched 1 Ralston, Venezuelan Arbitrations of 1903 (Washington, D. C., 1904), p. 381. See infra, pp. 171 et seq.

THE STANDARD on

the

interpretation

of

OF INTERPRETATION treaties

extensively,

81 it

appears

natural that adjudications rendered thereby ought to be accorded closer observation than those national courts. 1

reported

by

any

For this reason the leading cases under

1 For certain English reported cases bearing on the interpretation of treaties, see Elphinstone v. Bedrecchund, 2 Knapp. 340; Maltass v. Malt ass, 1 Rob. Ecc. 67; Lindo v. Rodney, Doug. K. B. 340; Hotham v. East India Company, K. B. 227; Marryat v. Wilson, 1 Bos. & Pul. 436-9; The " Diana ", 5 Rob. 60, 67; The "Fama", ibid., 106; The " Zacheman", ibid., 152; The "Charlotte", ibid., 305; The " Elisa Ann", 1 Dod. 244; The "Molly", ibid., 394; The "Rigende Jacob", 1 Rob. 89; Richardson v. Anderson, 1 Camp. 65. For certain American reported cases, see Foster v. Nielson, 2 Pet. 253; Cordon v. Kerr, 1 Wash. C. C. 322; Society v. New Haven, 8 Wheat. 464; United States v. Percheman, 7 Pet. 51; The " St. J. Indiano ", 2 Gall. 268; Blight v. Rochester, 7 Wheat 535; Whitaker v. English, 1 Bay. 15; Hutchinson v. Brock, 11 Mass. 119; The "Piearro", 2 Wheat. 227; The "Santissima Trinidad", 7 Wheat. 283; Hylton v. Brown, 1 Wash. C. C. 343; Bolchos v. Three Negro Slaves, Bee Adm. 74; British Consul v. Ship "Mermaid", Bee Adm. 69; Henderson v. Poindexter, 12 Wheat. 530; Garcia v. Lee, 12 Pet. 511; M'Nair v. Ragland, 1 Dev. Eq. 516; Orser v. Hoag, 3 Hill, 59; Miller v. Gordon, 1 Taylor 308; Wilson v. Smith, 5 Yerg. 379; Ware v. Hylton, 3 Dallas, 199; Hamyltons v. Eaton, Martin, 79; Graham v. Pennsylvania Ins. Co., 1 Wash. C. C. 113; The "Amiable Isabella", 6 Wheat. 1; Miller v. The " Resolution", Bee Adm. 404; Anderson v. Lewis, 1 Free. Ch. 178; Stockton v. Williams, Walk. (Mich.), 120. See also Castro v. De Uriarte, 16 Fed. 93; Humphrey's Adrn'x v. United States, Dev. Ct. CI. sees. 678, 683, 684; Howard v. Ingersoll, 17 Ala. 780; Kenton v. Baroness of Pontalba, I Rob. 343; Little v. Watson, 32 Me. 214; In re Metsger, 1 Barb. 248; Borgmeyer v. Idler, 159 U. S. 408; Comegys v. Vasse, 1 Pet. 193; United States v. Diekelman, 92 U. S. 520; Frelinghuysen v. United States, n o U. S. 63; Mali v. Keeper of the Common Jail, 120 U. S. 1; Jackson v. Porter, 1 Paine, 457; Baker v. City of Portland, 5 Sawy. 566; In re Parrott, 6 Sawy. 349; Bartram v. Robertson, 15 Fed. 212; Fox v. Southack, 12 Mass. 143; Hunt v. Card, 31 Mass. 135; May v. Specht, 1 Mich. (Man.), 187; The Diamond Rings, 183 U. S. 176; Goetze v. United States, 182 U. S. 221; The Neck, 138 Fed. 144; The Tom, 39 Ct. CI. 290; In re Lobrasciano's Estate, 38 Misc. Rep. 415; Downes v. Bidwell, 182 U. S. 244; O'Reilly De Camara v. Brooke, 135 Fed. 384; State v. Succession of Marquise de Circe, Man. Unrep. Cas. 412; Succession of Rcbasse Portier v. Le Roy, 1 Yeates, 371; Patsone v.

82

THE INTERPRETATION

OF

TREATIES

discussion in the ensuing pages are mostly recent awards of international tribunals.

B y this, however, it is not to be

inferred that such awards are more scientific or equitable, but rather that they serve more appropriately as an index pointing out the prevailing

modes

of

interpreting

inter-

national agreements as well as illustrating the differences and similarities between artificial modes and the mode sponsored b y the scientific principles of interpretation. In the minds of some writers there exist t w o ways

of

ascertaining standard, one followed by diplomatists in acCommonwealth, 232 U. S. 138; Minnesota Canal and Power Co. v. Pratt, 112 N. W . 39s; In re Infelise's Estate, 51 Mont. 18; In re Scutella's Estate, 129 N. Y . S. 20; Bondi v. Mackay, 87 Vt. 271; Maiorano v. Baltimore & O. R. Co., 213 U. S. 268; Alvarez y Sanchez v. United States, 316 U. S. 167; McGovern v. Philadelphia, 235 U. S. 389; Heim v. McCall, 239 U. S. 175; Duus v. Brown, 245 U. S. 176; Tucker v. United States, 157 Fed. 386; Fulco v. Schuylkill Stone Co., 169 Fed. 98; Eighteen Packages of Dental Instruments v. United States, 242 U. S. 617; International Transit Co. v. City of Sault Ste. Marie, 194 Fed. 522; De Biasi v. Normandy Water Co., 228 Fed. 234; Eastern Extension, Australasia and China Telegraph Co. v. United States, 251 U. S. 35s; In re Servas' Estate, 169 Cal. 240; McKeown v. Brown, 149 N. W . 593; Brown v. Daly's Estate, 154 N. W . 602; Ainsworth v. Munoskong Hunting and Fishing Club, 123 N. W . 802; Erickson v. Carlson, 145 N. W . 352; In re Stixrud's Estate, 58 Wash. 339; United States v. Seufert Bros. Co., 233 Fed. 579; Hamilton v. Erie R. Co., 154 N. Y . S. 1125 ; Lutze v. City of New Orleans, 237 Fed. 1018; Fischer v. Sklenar, 163 N. W . 861; In re Anderson's Estate, 147 N. W . 1098; In re Peterson's Estate, 151 N. W. 66; United States v. British Schooners, 5 Alaska, 1 1 ; Brown v. Peterson, 170 N. W . 444; Chryssikos v. Demarco, 107 A . 358; Terrazas v. Holmes, 225 S. W . 848; Ex Parte Heikich Terui, 200 P. 934; Terrazas v. Donohue, 227 S. W . 206; Frasca v. City Coal Co., 116 A . 189; Anchor Line v. Aldridge, 280 Fed. 870; In re Tetsubumi Vane's Estate, 206 P. 995; Gizzarelli v. Presbrey, 117 A. 359; Ex parte Gagliardi, 284 Fed. 190; Cornelius v. City of Seattle, 213 P. 17; Dobrin v. Mallory S. S. Co., 298 Fed. 349; United States v. Siem, 299 Fed. 582; Liberato v. Royer, 126 A . 257; State v. Tagami, 234 P. 102; The Frances Louise, 1 Fed. (2d), 1004) ; United States v. Chemical Foundation, 5 Fed. (2d), 191; Weedin v. Mon. Hin, 4 Fed. (2d), 533; The Over the Top, 5 Fed. (2d), 838; Olsson v. Savage, 240 P. 586; Ford v. United States, 47 Sup. Ct. 531.

THE

STANDARD

OF INTERPRETATION

83

cordance with a particular policy, and the other followed by jurists in accordance with their individual legal beliefs. In support of such a supposition they are wont to introduce the divergent interpretations of the most-favored-nation clause in treaties of commerce as formerly given by the United States on the one hand, and England and some other European nations on the other.1 But the principles of ascertaining the standard agreed upon by the contracting parties do 1 See Hyde, op. cit., vol. ii, pp. 73-78. It is important to note that the traditional policy of the United States in viewing reciprocal commercial concessions not as gratuitous and hence not within the scope of the most-favored-nation clause has undergone a change in the conclusion of new agreements such as the treaty of friendship, commerce and consular rights with Germany, signed at Washington on December 8, 1923. Article V I I of this agreement provided in part the following : " Each of the high contracting parties binds itself unconditionally to impose no higher or other duties or conditions and no prohibition on the importation of any article, the growth, produce, or manufacture of the territories of the other than are or shall be imposed on the importation of any like article the growth, produce or manufacture of any other foreign country. Each of the high contracting parties also binds itself unconditionally to impose no higher or other charges or other restrictions or prohibitions on goods exported to the territories of the other high contracting party than are imposed on goods exported to any other foreign country. Any advantage of whatsoever kind which either high contracting party may extend to any article, the growth, produce, or manufacture of any other foreign country shall simultaneously and unconditionally, without request and without compensation, be extended to the like article, the growth, produce, or manufacture of the other high contracting party With respect to the amount and collection of duties on imports and exports of every kind, each of the two high contracting parties binds itself to give to the nationals, vessels and goods of the other the advantage of every favor, privilege, or immunity which it shall have accorded to the nationals, vessels, and goods of a third State, and regardless of whether such favored State shall have been accorded such treatment gratuitously or in return for reciprocal compensatory treatment. Every such favor, privilege, or immunity which shall hereafter be granted the nationals, vessels, or goods of a third State shall simultaneously and unconditionally, without request and without compensation, be extended to the other high contracting party for the benefit of itself, its nationals, and vessels." Cong. Rec., vol. lxv, pt. ii, p. 1991.

84

THE INTERPRETATION

OF

TREATIES

not warrant such a distinction. That the United States once employed the most-favored-nation clause in a sense distinctly different from other countries was merely a manifestation of adopting a special standard. The function of the interpreter, whether diplomatist or jurist, would be to ascertain if there was evidence indicative of the fact that her special standard was acquiesced in by the other contracting state. It goes without saying, if there was such evidence indicative of the fact that the United States had agreed with another country upon a standard contradictory to her ordinary policy, it would be the mutual standard fortified by evidence that should be recognized by the interpreter.1 But, as a matter • T h u s in the controversy of 1898 between the United States and Switzerland over the interpretation of the treaty of November 25, 1850, evidence afforded by prior negotiations was relied upon to ascertain the mutual standard in contravention to the traditional interpretation of the most-favored-nation clause by the United States. In pursuance of Articles V I I I , I X , X and X I I of said treaty, the Swiss Government demanded that the United States should give Swiss importations the same concessions as were accorded French importations under the reciprocity treaty of May 28, 1898 between the United States and France. The United States contended " that a reciprocity treaty is a bargain and not a favor, and that it therefore does not come within the scope of the most-favored-nation clause." But it was pointed out by the Swiss Government that in the course of negotiating the treaty of 1850 the Swiss negotiator objected to the American attempt to insert a restrictive clause to the effect that the concession should be accorded freely if freely accorded, or on allowing the same compensation if the concession were conditional. A s a result, the American negotiator abandoned the proposed restrictive clause " out of friendly consideration for Switzerland". Thus when the treaty was submitted to the Swiss federal assembly for ratification, it was specifically indicated that the American negotiator had waived the traditional American interpretation of the most-favored-nation clause by withdrawing the restrictive clause suggested. Similarly, the American negotiator advised the Secretary of State of this mutual understanding, and the Senate in ratifying the treaty did not attempt any modification of the clause. On account of such extrinsic evidence, therefore, the individual standard of the United States had to yield to the mutual standard acquiesced in by the two nations. " Under these circumstances," so did the American Secretary of State declare to the Swiss minister, " we believe it to be

THE

STANDARD

OF

INTERPRETATION

85

of fact, in most cases when the clause is commonly understood by the contracting parties in accordance with certain national policies, the standard so recognized is easily seen therefrom, and ought not to become a serious problem of construction.1 In this respect the most-favored-nation clause, though its historical evolution forms a highly complicated topic in international agreements, demands no new theory of interpretation, and for this reason it requires no separate treatment. II. T H E L U S I T A N I A

CASES

The opinion in the Lusitania Cases 2 delivered by Judge Parker, umpire of the Mixed Claims Commission between the United States and Germany established in pursuance of the agreement of August 10, 1922,3 is noteworthy because our duty to acknowledge the equity of the reclamation presented by your Government. Both justice and honor require that the common understanding of the high contracting parties at the time of the executing of the treaty should be carried into effect." See H . Doc., No. I, 56th Cong., 1st Sess., 740-748; Hyde, op. cit., vol. ii, p. 69, n. 1. See also United States v. Yorba, 1 W a l l . 412; More v. Steinbach, 127 U . S. 70. 1 " It is important to observe that the question concerning the application of the most-favored-nation clause to special reciprocal commercial agreements is one where the traditional policy of a contracting party is regarded as decisive of its stand and as governing its attitude at the time of negotiation. This circumstance removes to a large degree the general problem of construction and the method of its solution f r o m the field of pure interpretation. Thus the effort to ascertain as by judicial process the sense which both parties to a treaty sought to attach to a particular pledge, has given w a y to attempts to f o r t i f y constructions relied upon by reference to their relation to well-known national policies." Hyde, op. cit., vol. ii, pp. 75-76. Cf. diplomatic notes exchanged between the United States and Turkey over the interpretation of article 4 of the treaty of 1830. U. S. For. Rel., 1900, pp. 909-919. 1

M . C. C. ( U . S . & G e r . ) , pp. 17-32.

' Article I of the agreement provided that: " T h e commission shall pass upon the following categories of claims which are more particularly defined in the Treaty of August 25, 1921, and in the Treaty of V e r s a i l l e s : " ( 1 ) Claims of American citizens, arising since July 31, 1914, in r e -

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of its reasoning in regard to the principles of ascertaining standard as well as because of its observance and introduction of certain rules of construction. These cases arose out of the sinking of the British ocean liner Lusitania by a German submarine off the coast of Ireland on May 7, 1915, when the United States was maintaining her neutrality. On board the ship there were 197 American citizens, 69 being saved and 128 drowned. As the circumstances of the sinking are familiar to all, there appears to be no necessity of repeating them in connection with the examination of the mode of interpreting the treaty concerned. The task with which the commission was confronted was to determine certain standards concerning " measures of damages in death cases," and in order to expedite the adjudications, " administrative decisions " were made and " rules " formulated, setting forth some preliminary standards of interpretation. In Administrative Decision No. I, 1 terms like the "United States," "Germany," "Germany or her allies," " war period," " period of neutrality," " period of belligerency," "American nationals," etc. were defined, and the scope of the general financial obligations of Germany to the United States was established.2 In Administrative Decision spect of damage to, or seizure of, their property, rights and interests, including any company or association in which they are interested, within German territory as it existed on August I, 1914; "(2) Other claims for loss or damage to which the United States or its nationals have been subjected with respect to injuries to persons, or to property rights and interests, including any company or association in which American nationals are interested, since July 31, 1914, as a consequence of the war; "(3) Debts owing to American citizens by the German Government or by German nationals." Ibid., pp. 5-6. U. S. Treaties Ser., No. 665, p. 4. i M . C. C. (U. S. & Ger.), pp. 1-3. '' The financial obligations of Germany to the United States arising under the Treaty of Berlin on claims other than excepted claims, put

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No. I I 1 dealing with the functions of the commission and announcing fundamental " rules " of decision several special forward by the United States on behalf of its nationals, and sustained by the umpire of the commission, included (.ibid., pp. 2-3) : " ( A ) all losses, damages, or injuries to them, including losses, damages, or injuries to their property wherever situated, suffered directly or indirectly during the war period, caused by acts of Germany or her agents in the prosecution of the war, provided, however, that during the period of belligerency damages with respect to injuries to and death of persons, other than prisoners of war, shall be limited to injuries to and death of civilians; and also " ( B ) all damages suffered by American nationals during the period of belligerency caused b y : " ( 1 ) GERMANY through any kind of maltreatment of prisoners of w a r ; " ( 2 ) GERMANY OR HEK ALLIES and falling within the following categories : " ( a ) damage wherever arising to civilian victims of acts of cruelty, violence, or maltreatment (including injuries to life or health as consequence of imprisonment, deportation, internment, or evacuation, of exposure at sea, or of being forced to labor), and to the surviving dependents of such victims; " ( b ) damage, in territory of Germany or her allies or in occupied or invaded territory, to civilian victims of all acts injurious to health or capacity to work, or to honor, and to the surviving dependents of such victims; " ( c ) damage to civilians by being forced to labor without just remuneration ; " ( d ) damage in the form of levies, fines, and other similar exactions imposed upon the civilian population; " ( e ) damage in respect of all property (with the exception of naval and military works or materials) wherever situated, which has been carried off, seized, injured, or destroyed, on land, on sea, or from the air; " ( 3 ) ANY BELLIGERENT and falling within the following categories: " ( a ) damage directly in consequence of hostilities or of any operations of war in respect of all property (with the exception of naval and military works or materials) wherever situated; " ( b ) damage wherever arising to injured persons and to surviving dependents by personal injury to or death of civilians caused by acts of war, including bombardments or other attacks on land, on sea, or from the air, and all the direct consequences thereof, and of all operations of war." 1 Ibid., pp. 5-15.

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significations were ascribed to terms like "claimant," "original and continuous ownership of claim," " losses suffered directly or indirectly," etc., and quite in accordance with international usages. 1 Adverting to the fact that throughout the decisions of the commission the Government of the United States was the real claimant, the well-recognized practice being that only governments are the real parties to international arbitrations, the commission made it clear that : " If in the decisions, opinions and proceedings of the Commission American nationals are referred to as claimants it will be understood that this is for the purpose of convenient designation and that the Government of the United States is the actual claimant." ' Moreover, concerning the phrase " losses suffered directly or indirectly," the commission attributed to it a sense which was quite different from the contention of the American counsel who insisted that according to the correct significance of the said phrase Germany was "responsible for all damage or loss in consequence of the war, no matter what act or whose act was the immediate cause of the injury." A s this 1 With respect to the principles governing the adjudications the commission declared that it would be controlled by the terms of the Treaty of Berlin. W h e r e no applicable provision was found in that instrument in determining the measure of damages, it might apply (ibid., pp. 7-8) : " ( a ) International conventions, whether general or particular, establishing rules expressly recognized by the United States and Germany ; " ( b ) International custom, as evidence of a general practice accepted as l a w ; " ( c ) Rules of law cpmmon to the United States and Germany established by either statutes or judicial decisions ; " ( d ) The general principles of law recognized by civilized nations; " ( e ) Judicial decisions and the teachings of the most highly qualified publicists of all nations, as subsidiary means for the determination of rules of law ; but

" ( f ) The Commission will not be bound by any particular code or rules of law but shall be guided by justice, equity and good faith." 'Ibid.,

p. 8.

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argument would fix on Germany a liability beyond the design of the Treaty of Berlin, 1 the umpire held that the " losses suffered directly or indirectly " implied only such losses of which the approximate cause must have been in legal contemplation the act of Germany, and of which the direct result or consequence must have been the loss, damage, or injury suffered. W i t h the significance of these terms thus previously ascertained, the umpire began to adjudicate upon the damages in the Lusitania Cases. In the death cases, what should be the compensation? O n what basis should the compensation be calculated? These were the questions which the umpire was called upon to answer. Strictly speaking, the problem was not so much one of ascertaining the design of the authors of the Treaty of Berlin, for the Mixed Commission was accorded ample freedom to determine certain issues, as a problem of formulating certain definitions by the commission through which it might dispose of many controversial points. Regarding the fixing of the amount of compensation, the umpire said: Our formula expressed in general terms for reaching that end is: Estimate the amounts (a) which the decedent, had he not been killed, would probably have contributed to the claimant, add thereto (b) the pecuniary value to such claimant of the deceased's personal services in claimant's care, education, or supervision, and also add (c) reasonable compensation for such mental suffering or shock, if any, caused by the violent severing of family ties, as claimant may actually have sustained by reason of such death. The sum of these estimates, reduced to its present cash value, will generally represent the loss sustained by claimant. 2 13

U. S. Treaties, 2597.

' " I n making such estimates," continued the umpire, "there will be considered, among other factors, the following: (a) the age, sex, health, condition and station in life, occupation, habits of industry and sobriety,

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This statement bears a two-fold significance. In the first place it establishes a sense, which the authors of the Treaty of Berlin evidently did not attempt to establish by enumeration. Secondly, the sense so established, while embracing a large number of controlling factors, may not by any means be regarded as an exhaustive designation. The former point demonstrates the mode of adopting a particular standard by the commission in order to expedite its work, and the latter point illustrates the constant need of interpretation. Another problem of interest that came up before the commission was the determination of the measurement of damages in respect to the question whether exemplary or punitive and vindictive compensations should be assessed. In giving the question a negative answer the commission pointed out how exemplary damages were different from damages sustained by mental suffering,2 and how it was not the mental and physical capacity, frugality, earning capacity and customary earnings of the deceased and the uses made of such earnings by him; (b) the probable duration of the l i f e of deceased but f o r the fatal injury, in arriving at which standard life-expectancy tables and all other pertinent evidence offered will be considered; ( c ) the reasonable probability that the earning capacity of deceased, had he lived, would either have increased or decreased; ( d ) the age, sex, health, condition and station in life, and probably life expectancy of each of the claimants; (e) the extent to which the deceased, had he lived, would have applied his income from his earnings or otherwise to his personal expenditures from which claimants would have derived no benefits; ( f ) in reducing to their present cash value contributions which would probably have been made from time to time to claimants by deceased, a 5 % interest rate and standard present value tables will be used; ( g ) neither the physical pain nor the mental anguish which the deceased may have suffered will be considered as elements of damage; ( h ) the amount of insurance on the life of the deceased collected by his estate or by the claimants will not be taken into account in computing the damages which claimants may be entitled to recover; ( i ) no exemplary, punitive, or vindictive damages can be assessed." M. C. C. ( U . S . & G e r . ) , pp. 19-20. 1

" That one injured is, under the rules of international law, entitled to be compensated f o r an injury inflicted resulting in mental suffering, injury

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design of the negotiators of the Treaty of Berlin to uphold the former. " Part V I I of the Treaty of Versailles (Articles 227 to 230, inclusive) deals with ' Penalties,' " said the umpire. " It was significant that these provisions were not incorporated in the Treaty of Berlin." 1 T o fortify his conclusions, the umpire invoked the negotiations of the Treaty of Berlin as extrinsic evidence to prove that the authors of the agreement could not have designed to exact damages from Germany in the nature of punishment. The umpire maintained that had there been any design on the part of the United States to exact a penalty either as a punishment or as an example and a deterrent, such design would have been clearly expressed in the treaty itself, and that had such design taken the form of money payment it would have been claimed by the Government of the United States on its own behalf and not on behalf of its nationals.2 to his feelings, humiliation, shame, degradation, loss of social position or injury to his credit or to his reputation, there can be no doubt, and such compensation should be commensurate to the injury. Such damages are very real, and the mere fact that they are difficult to measure or estimate by money standards makes them none the less real and affords no reason why the injured person should not be compensated therefor as compensatory damages, but not as penalty." M. C. C. (U. S. & Ger.), p. 27. 1

Ibid., p. 28.

2"

While under that portion of the Treaty of Versailles," proceeded the umpire, " which has by reference been incorporated in the Treaty of Berlin, Germany ' accepts' responsibility for all loss and damage to which the United States and its nationals have been subjected as a consequence of the war, nevertheless the United States frankly rcognizes the fact ' that the resources of Germany are not adequate... to make complete reparation for all such loss and damage', but requires that Germany make ' compensation' for specified damages suffered by American nationals. (Articles 231 and 232 and Annex I to Section I of Part V I I I of the Treaty of Versailles.) For the enormous cost to the Government of the United States in prosecuting the war no claim is made against Germany. No claims against Germany are being asserted by the Government of the United States on account of pensions paid, and compensation in the nature of pensions paid, to naval and military victims of the war and to their

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Nevertheless, in the course of proving the soundness of its contention, the commission was not entirely free from the influence of the so-called rules of construction. Indeed, such rules were specifically invoked in the following language:1 The Treaty is our charter. W e can not look beyond its express provisions or its clear implications in assessing damages in any particular claim. W e hold that its clear and unambiguous language does not authorize the imposition of penalties. Hence the fundamental maxim " It is not allowable to interpret that which has no need of interpretation" applies. But all of the rules governing the interpretation of treaties would lead to the same result were it competent for us to look to them. Some of these are: The Treaty is based upon the resolution of the Congress of the United States, accepted and adopted by Germany. The language, being that of the United States and framed for its benefit, will be strictly construed against it. Treaty provisions must be so construed as to best conform to accepted principles of international law rather than in derogation of them. Penal clauses in treaties are odious and must be construed most strongly against those asserting them. While the questionable nature of these rules is discussed elsewhere, it is worthy of remark in this connection that to consider the treaty as a charter from which the interpreter is not to look beyond its express provisions appears to follow a procedure of ascertaining standards that may families and dependents. In view of this frank recognition by the 'Government of the United States of Germany's inability to make to i t full and complete reparation for all of the consequences of the war, how cm 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 for the use and benefit of a small group of American natiioiuds for whose full and complete compensation for losses sustained adeiquste provision has been made ? " Ibid., p. 29. 1

Ibid., p. 31.

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tend to preclude extrinsic evidence. As a matter of fact, the commission did not confine itself to the " express provisions " of the treaty; it reached, to a certain extent, into the circumstances under which the treaty was made. If the rule of not looking beyond the express provisions of the treaty were so held as to mean that the " clear and unambiguous language " therein did not authorize the imposition of exemplary damages, it could be similarly held that the " clear and unambiguous language " did not authorize the imposition of damages sustained by mental suffering. To put it in other words, if the aforesaid rule were justly invoked to defeat a recognition of exemplary damages, it might likewise be invoked to defeat the commission's ruling with respect to damages due to mental suffering. Again, the commission, not unlike many other tribunals, introduced Vattel's fundamental maxim, " It is not allowable to interpret that which has no need of interpretation." The obvious challenge to this invocation lies in the query, " Who is to determine that there is no need of interpretation?" Is it not true that one provision may appear to have no need of interpretation on the surface, and yet does require an interpretation when certain evidence is submitted? Is it not true that if the rule of no need of interpretation may be applied succinctly to uphold the commission's contention against exemplary damages, it may similarly be applied to defeat the commission's argument for damages sustained by mental suffering? For the same reason, the language of the treaty, "being that of the United States and framed for its benefit," should hardly be taken as a scientific ground on which to have the treaty interpreted against the United States. 1 Nor should international law be taken as ;a deterrent against an interpretation in derogation thereof, 1

Cf. infra, pp. 115, 144, n. x.

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if there be evidence in support of a special interpretation. 1 O f course, it is not to be questioned that there is a distinct difference between the nature of damages implying punishment and of damages f r o m mental suffering, but a comparison of the t w o w i t h regard to the application of the rules of construction cannot but yield a conclusion that such rules are scarcely trustworthy, and that evidence must be taken as the polestar to ascertain the sense in which terms have been employed.

T h e soundness and equity in Judge Parker's

opinion in the Lusitania Cases m a y be more scientifically taken as a consequence of the evidence revealed f r o m the circumstances surrounding the treaty than as a result of the rules of construction which were introduced. III. T H E CASE RELATING TO T H E EXTRADITION TREATY OF 1 8 9 9 BETWEEN T H E UNITED STATES AND MEXICO

Frequently the significance of terms is agreed upon between the contracting states subsequent to the conclusion of a treaty.

In such a case the newly defined sense un-

doubtedly will supersede the old even though the circumSee the opinion construing the phrase " naval and military works or materials " as applied to hull losses where the commission declared: " T h e terms of the T r e a t y fix and limit Germany's obligations to pay, and the Commission is not concerned with enquiring whether the act for which she has accepted responsibility was legal or illegal as measured by rules of international law. It is probable that a large percentage of the financial obligations imposed by said paragraph 9 [of Annex I to Section I of P a r t V I I I of the T r e a t y of Versailles] would not arise under the rules of international law but are terms imposed by the victor as one of the conditions of peace." ( M . C. C. [U. S. & Ger.], p. 76.) This sufficiently indicates the danger of applying the rule that treaty provisions must be so construed as to best conform to accepted principles of international law rather than in derogation of them, because in the intercourse between nations special standards are often employed in their agreements. The function of the interpreter is to ascertain the sense of those special standards and not to question the moral or ethical justifications of the treaties Per se. But see the invocation of the principle of international law in connection with the doctrine of uberrima fides, infra, pp. 230 et seq. 1

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stances under which both have been adopted may be looked into in future disputes so as to ascertain the true sense through extrinsic evidence. In this connection, it is interesting to observe that the interpretation of Article X of the extradition treaty between the United States and Mexico concluded on February 22, 1899, 1 was made successfully by an exchange of diplomatic notes, and the sense in respect to the provision of forty days for the production of the documents on which the request of extradition was founded was agreed upon definitely by the contracting parties after the examination of the circumstances and reasons for which the treaty was made. 2 Article X of the treaty provided: On being informed by telegraph or otherwise, through the diplomatic channel, that a warrant has been issued by competent authority for the arrest of a fugitive criminal charged with any of the crimes enumerated in the foregoing articles of this treaty, and on being assured from the same source that a requisition for the surrender of such criminal is about to be made, accompanied by such warrant and duly authenticated depositions, or copies thereof, in support of the charge each government shall endeavor to procure the provisional arrest of such criminal and to keep him in safe custody for such time as may be practicable, not exceeding forty days, to await the production of the documents upon which the claim for extradition is founded. According to the prevailing usage of the United States the period of forty days would be counted from the date of the arrest of the offender to the date of the presentation of the papers to the magistrate in charge of the case rather than to the Department of State. T h e Mexican Government objected to this interpretation because the presentation of the papers to the Mexican Government by the American 1

1 U. S. Treaties, 1184-1190. U. S. For. Rel., 1908, pp. 594-597-

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Embassy quite frequently had been on the last or a few days before the last of the forty days, and because Article X did not provide that the papers should be delivered to the magistrate who was to conduct the extradition proceedings but only specified that the government on which the requisition was made " shall endeavor to procure the provisional arrest of such criminal and to keep him in safe custody for such time as may be practicable, not exceeding forty days, to await the production of the documents." The Mexican Government suggested that the provision of forty days should be given an interpretation " that the Government on which the requisition is made must wait forty days until the documents are presented to it, and that this requirement is fulfilled at the time when they are delivered to the Department of State, which represents the Government." 1 In regard to this suggestion the United States Government, through the Attorney General, analyzed the original purpose for making the extradition treaty, and accepted the Mexican interpretation, even though the accustomed course taken by the United States in general was that the foreign government should deliver its documents through its proper officer directly to the committing magistrate, and then, if the fugitive was committed for surrender, the documents were forwarded by the magistrate to the State Department for examination and approval. The concession thus made by the United States, however, was based chiefly on the purpose for which the whole agreement was concluded and the circumstances under which the treaty stipulation was designed to be carried out. In the words of the Attorney General : 2 The question is practically important because in view of the 1 José F. Godoy, Mexican Chargé d'Affaires to the Secretary of State, March 3, 1908. U. S. For. Rei., 1908, pp. 594-595. 2 The Attorney General to the Secretary of Ibid., pp. 596.

State, July

10, 1908.

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97

long distances and limited facilities for communication with Mexico, it would often be difficult or even impossible to transmit the papers through the diplomatic channels to the respective State Departments and thence to the extradition magistrate in some outlying district all within forty days. . . . The purpose of this treaty is the highly salutary one of securing the arrest and punishment of lawbreakers and dangerous members of the community. It should be so construed, in my opinion, as to give effect to this purpose. Moreover, it must be supposed that the two Governments acted and agreed together with the peculiar conditions existing in Mexico present to the minds of both. If one construction assures a reasonable opportunity for each Government to furnish the other proofs necessary to justify the continued detention of suspected criminals, while another construction facilitates the escape of fugitives from justice and tends to impede the punishment of crime, the former should certainly be preferred in the absence of compelling words to the contrary. Thè specification thus definitely agreed upon by the two governments had a two-fold significance. In the first place, the exchange of notes indicated an effort to remove any doubt, prior to any occurrence of controversial claims, as to the actual sense that the contracting parties had attached to the term " not exceeding forty days." In the second place, the review of the extrinsic considerations in respect to the purpose of making the extradition treaty revealed the fact that the parties were heeding the actual sense which they had attached to terms employed. Nations, however, are not always disposed to agree, through subsequent diplomatic correspondence, upon the sense of a certain term, fearing lest such an agreement may either limit the judicial action of their own domestic courts or usurp the powers of the proper treaty-making authority. Thus when Article V I I I 1 1

" Requisitions for the surrender of fugitives from justice under the

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of the aforesaid extradition treaty was declared again by Mexico in 1 9 1 0 , 1 to entail an interpretation through an exchange of diplomatic notes that " in accordance with the practice which already obtains, the authentication by consuls residing in the country from which extradition is demanded is sufficient to have the papers upon which the request is based considered as duly authenticated," the Government of the United States did not manifest a willingness to accept the plan so suggested, primarily on account of the legal complexity over the status of such an " executive interpretation."

2

Nevertheless, if the notes had been exchanged in

present convention shall be made by the respective diplomatic agents of the contracting parties, or, in the event of the absence of these from the country or from its seat of government, they may be made by superior consular officers. " If a person whose extradition is asked for shall have been convicted of a crime or offense, a copy of the sentence of the court in which he was convicted, authenticated under its seal, with attestation of the official character of the Judge by the proper executive authority and of the latter by the minister or consul of the respective contracting party, shall accompany the requisition." 1 U. S. Treaties, 1187. 1 See communication from Sr. de la Barra, Mexican Ambassador to Mr. Knox, Secretary of State, March 2, 1910; U. S. For. Rel., 1910, P- 731. * Mr. Knox in his communication to Sr. de la Barra, dated April 13, 1910, said: "The department regrets to say that it deems inadvisable to exchange notes in the sense proposed in your note, since even if the department did exchange notes setting forth an understanding as suggested by you, such notes would not, so far as the internal affairs of this Government are concerned, have the status either of a treaty or of a law, but would be merely an executive interpretation of the treaty and of the Federal statutes. This would not be binding upon the courts of this country, which might at any time disregard the agreement incorporated in the notes, in which case it would not be possible for the department to control their decision. This is particularly true, since it is not entirely clear to the department that the contention which you make regarding the meaning of Article VIII of the treaty is the only one which may properly be placed upon i t In this connection you will observe that the first paragraph of Article VIII stipulates that consular officers may act ' in

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compliance with the request of Mexico, they would probably have been utilized as evidence for sustaining the sense agreed upon in any later controversies. This, however, would not intimate a deviation from the general principles of interpretation, but simply close the door to further interpretation. Although in the practice of nations minor differences respecting the sense in which terms have been used are frequently settled through a single exchange of diplomatic notes, 1 care must be taken that such efforts at ascertaining the event of the absence of these [that is, the respective diplomatic agents of the contracting parties] from the country or from its seat of government and it might well be contended that this stipulation of the first paragraph shall be carried over into the second paragraph of the article, which speaks of an authentication by the ' minister or consul of the respective contracting p a r t y A t any rate the point seems so doubtful that a decision, either one way or the other, by the courts of either country could scarcely be regarded as improper. Therefore it would appear that such regulations as you suggest would, in order to be properly effective in this country, have to be made either by means of new legislation or by means of a formal treaty. The department regrets to say that for these reasons it feels that it would be unwise to exchange notes in the sense you suggest." U. S. For. Rel., 1910, p. 732. 1 See the interpretation of the word " champagne " as used in the commercial agreement between the United States and Germany, signed on April 27, 1907 (1 U. S. Treaties, 563-565). According to this agreement the latter government was granted by the former the benefit of reduced rates provided by the American tariff on " products of the soil and industry of Germany" among which were included " champagnes and other sparkling wine?." The French Government protested to the United States that because of the word " champagne " was thus wrongfully used the French champagne growers had to suffer "serious injury". In reply to the protest the United States explained that the provision of the commercial agreement referred to should be interpreted as specifically distinguishing champagne from all other sparkling wines, instead of taking the word " champagne " as though it were a generic term. U. S. For. Rel., 1907, pp. 508-510. See also the interpretation by an exchange of diplomatic notes of Article II of the treaty of 1903 between the United States and Panama with respect to the laying of a cable by the Central and South American Telegraph Co. through the waters of Manzanillo Bay which was regarded as territory of the Canal Zone. U. S. For. Rel., 1908, pp. 677-680.

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the sense in which the terms have been employed do not assume a form of undue construction. In other words, i f the parties concerned sincerely attempt to interpret the doubtful expressions by diplomacy, the fundamental principles undoubtedly will apply as in the ordinary case. But if diplomats, for the sake of convenience, undertake to initiate a peculiar construction at variance with the proven design o f the treaty they may be fairly charged with having attempted to amend the treaty. IV. T H E CASE OF T H E EXCHANGE OF GREEK AND TURKISH POPULATIONS

T h e interpretation involved in the Tenth Advisory Opinion 1 given by the Permanent Court of International Justice with respect to the second article of the convention of January 30, 1923, signed at Lausanne by Greece and Turkey, is of great interest, in so far as the precise question calls f o r the ascertaining of the sense in which the contracting parties attached to a single word, namely, the word " established." During the years 1922 and 1923 a series of negotiations was conducted at Lausanne with the purpose of establishing peace between Turkey and the Allied Powers. Incidental to these negotiations, among other agreements, the aforesaid convention was concluded, providing for an exchange of Turkish and Greek populations. The principle governing the exchange in question was embodied in the first t w o articles of the convention as follows: 1 Article 1 A s from May 1st, 1923, there shall take place a compul&ory exchange of Turkish nationals of the Greek Orthodox religion iPub. P. C. I. J. (B), No. 10. 1

Ibid., p. 10; Great Britain, Treaty P- 175; 32 L. N. Treaties Series, 75.

Series,

No. 16 (1923), Cmd. 1929,

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established in Turkish territory, and of Greek nationals of the Moslem religion established in Greek territory. These persons shall not return to live in Turkey or Greece respectively without the authorization of the Turkish Government or of the Greek Government respectively. Article 2 The following persons shall not be included in the exchange provided for in Article i : (a) The Greek inhabitants of Constantinople. (b) The Moslem inhabitants of Western Thrace. All Greeks who were already established before the 30th 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. All Moslems established in the region to the east of the frontier line laid down in 1913 by the Treaty of Bucharest sliall be considered as Moslem inhabitants of Western Thrace. In order to supervise and facilitate the emigration provided for by these stipulations, a Mixed Commission was formed, consisting of four members from each of the two parties concerned, and three members selected by the Council of the League of Nations. It was in the course of discharging the duties of this commission that the Greek and Turkish delegations thereto first found serious difficulties over the sense of the term " established" appearing in Article 2 of the convention. By common agreement, however, the divergent views of the two delegations were presented to the members of the commission, and the latter in turn drew up an opinion of its own in regard to the controversy. 1 Subsequently, it was proposed that the question of 1

These three opinions were read and argued at a meeting of the commission held on September 4, 1924. In this meeting the interpretation of the word " established " was discussed bearing on the following points (Pub. P. C. I. J . [B], No. 10, p. n ) : " ( a ) the question whether Article 2 of the Convention was a mere exception to Article 1, or whether,

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interpretation should be referred to the " L e g a l Section of the C o m m i s s i o n . "

T h i s course was taken and a report was

made by the members thereof. 1

B u t on account of

wide

differences the M i x e d C o m m i s s i o n w a s in a deadlock, during which it could not even meet to consider the report made b y its legal section. I t appeared that prior to October 2 1 , 1924, the T u r k i s h authorities at Constantinople had " sent to the hospitals at on the contrary, it laid down the principle of non-liability to exchange within its own sphere of application; (b) the question whether, in the second alternative, the principle contained in Article 2 would apply to certain territories or to certain categories of persons; (c) the grammatical meaning of the word ' established', more particularly as compared with the word 'domiciled'; (d) the value of local legislation as a factor for the interpretation of the word ' established'; in particular the Turkish laws of June a6th, 1902 and August 14th, 1914, called Noufouz; (e) how far the Mixed Commission and the municipal tribunals respectively are competent to apply the criterion of ' establishment'." 1 With respect to the word " established" the legal section of the commission, accompanying its report, made a draft resolution as follows

(ibid., p. 1 2 ) :

" The following persons shall be considered as established in any area exempt from exchange under Article 2 of the Convention: " ( 1 ) Any inhabitant of these areas who is entered in the public registrar's books or who is included in the census of these areas; " ( 2 ) Any person possessing in these areas a fixed residence, with the intention of remaining there permanently. This intention may be inferred from a number of circumstances, such as, for instance, the permanent exercise of a profession, commerce or industry or the acquisition of a practice in conformity with the laws; further, the fact of having concluded a contract for work of considerable duration, or of having entered upon a profession the nature of which would, in a general way, imply a residence of some length in the district, or any other fact tending to prove that the centre of such person's occupation and interests is situated in the area in question. " It shall be the duty of the Mixed Commission to take decisions ii regard to the persons liable to exchange. " The status of married women, widows and minors shall be tie same as that of their husbands or fathers. This applies equally to fathers and mothers who, in accordance with the law and local custom, are dtpendent upon their children."

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Baloukli, under police escort, something like 4,500 Greeks, who, according to the lists prepared by the various areas of the Prefecture of the City, were shown as arrived after October 30th, 1 9 1 8 . " 1 This incident made the correct understanding of the word " established " all the more imperative. On October 22, 1924, the Greek Charge d'Affaires at Berne appealed to the Council of the League of Nations under Article 1 1 of the Covenant," and on October 3 1 the Council suggested to the Mixed Commission the possibility of recourse to the Permanent Court of International Justice. Accordingly, the Mixed Commission met, and made a decision to ask the Council to obtain an advisory opinion from the court. On December 1 3 , 1924, the Council put the question to the tribunal in the following form : 3 What 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, in regard to which discussions have arisen and arguments have been put forward which are contained in the documents communicated by the Mixed Commission ? And what conditions must the persons who are described in Article 2 of the Convention of Lausanne under the name of " Greek inhabitants of Constantinople " fulfill in order that they may be considered as " established " under the terms of the Convention and exempt from compulsory exchange ? In other words, the court was asked to ascertain the sense of the word " established " as employed by the contracting parties. Was the standard of interpretation mutual or individual? Was it local or international? According to the Greek contention, as presented by M. Politis, Greek Minister 1

Pub. P. C. I. J. (B), No. 10, pp. 12-13.

3

L. N. Off. Jour., Nov., 1924, pp. 1663 et seq.

» Pub. P. C. I. J. (B), No. 10, p. 7.

!04

THE INTERPRETATION

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at Paris, the controversial term referred to the inhabitants of Constantinople who had taken up their residence there before October 30, 1 9 1 8 , with the intention of habitually residing there. In order to be exempt from exchange, one must have arrived at Constantinople before that date and have manifested " his intention to make it the centre of his interests and occupations," either by an official formality, or by some proof, such as the exercise of a permanent profession, trade, industry, etc., or in any other similar manner approved by the Mixed Commission. The Turkish interpretation as advanced by Dr. Terfik Rouchdy Bey, President of the Turkish Delegation to the Mixed Commission, chiefly relied upon a domestic law in Turkey to give the word " established " a special interpretation. 1 This law, so it was argued, should apply without distinction to minorities as well as to the majority of the country. A n attempt f o r any reason to suspend the functioning of a national legislation to any portion of the citizens of a country would be tantamount to giving such citizens a privilege as well as to an infringement of the rights of other minorities and of the majority. For this reason, unless it had been proved that under the provisions of the convention the law in question must be modified or suspended, it could not be changed without infringing the Turkish sovereign rights. The court in giving its opinion immediately pointed out that the standard to be ascertained was not the meaning and scope of the word " established " in the abstract, but rather " the meaning and scope of that word as used in Article 2 of the Convention of Lausanne." 2 T o be more precise, it was not the literal or grammatical meaning that the court was requested to define, but rather the sense in which the contracting parties had attached to the term as it appeared 1

P. C. I. J. (C), No. 7—1. * Ibid., (B), No. 10, p. 17.

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in the agreement. Assuming such a stand, the court proceeded with its reasoning that since the dispute involved the interpretation of a treaty between two states it could not be viewed as a question to be determined by reference to the relationship between the administration and the inhabitants. The sense of the term must be one in accordance with the mutual international agreement instead of one based upon an individual national legislation. Moreover, as the convention was drawn in French, and the French language was authoritative, the court adverted to the fact that the French word établissement embraced two elements : residence and stability, namely, " an intention to continue the residence in a particular place f o r an extended period." 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. The former referred to " a situation of fact " and the latter imported a legal connection according to domestic law. Inasmuch as in the case under consideration there was no express or implicit reference to national legislation, the court was of the opinion that the word " established " in article 2 of the convention taken in conjunction with the references to date and place indicated therein was to serve to distinguish between the exchangeable and the non-exchangeable parts both of the Greek population of Constantinople and of the Moslem population of Western Thrace, rather than to fix a criterion by virtue of a reference to national legislation. 1 It is notable that in dwelling on the theory with respect to national legislation as it did, the court was concerned especially with the ascertaining of the sense attached to the term " established " by the contracting states, and noted the circumstances under which the authors of the conven1 P. C. I. J. (B), No. 10, p. 20.

1 0

6

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tion employed the word. That it committed itself to such dangerous expression as that " the Convention is selfcontained " was not necessarily a manifestation of sustaining the theory of literal interpretation. On the contrary, in declaring the convention " self-contained" the court was careful to specify that there was no evidence manifested by the negotiators pointing to the presence in their minds of any consideration of national legislation. 1 In answering to the argument of the Turkish Delegation that the convention contained a reference to national legislation such as shown in Article 18, 2 the court declared: " But it does not in the least follow because the contracting Parties are obliged to bring their legislation into harmony with the Convention, that that instrument must be construed as implicitly referring to national legislation in so far as that is not contrary to the Convention." " I f an expression," the court continued, " not in itself of a legal nature, is used in a convention which derives legal consequences from it, it does not in the least follow that this criterion must be sought in the legislation of the respective contracting States." 3 Thus in the course of ascertaining the sense attached to the word " established " in relation to the consideration of national legislation, the court expressed doubt as to the existence of evidence indicating that the contracting parties had ever designed to observe or disregard the Turkish legislation. A s regards the second part of the question before the 1 " Nor is there any indication that the authors of the Convention, when they adopted the word [established] which has given rise to the present controversy, had in mind national legislation at all." P. C. I. J. ( B ) , No. io, p. 20.

* " The H i g h Contracting Parties undertake to introduce in their respective laws such modifications as may be necessary with a view to ensuring the execution of the present Convention." ' Ibid., p. 2i.

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court in respect to the conditions to be fulfilled by the " established " inhabitants, the court was reluctant to give any precise definition, because of its difficulty in " foreseeing all the various cases with which the Mixed Commission may be confronted," and the absence of sufficient materials in the discussions and arguments submitted to it in the present controversy. 1 It, however, considered that inhabitants who before October 30, 1 9 1 8 , met the conditions set forth as examples under heading ( 2 ) of the resolution of the legal section of the Mixed Commission adopted on October 1, 1924, 2 would be regarded fairly as "established" although they had come to Constantinople to make their fortune and intended to return subsequently to their place cf origin. Relying upon the foregoing reasoning, the court communicated its advisory opinion to the Council of the League of Nations in March, 1925, as follows: s 1. That the purpose of the word " established " in Article 2 of the Convention of Lausanne of January 30th, 1923, regarding the exchange of Greek and Turkish populations, is to indicate the conditions in point of time and place on which depends the liability to exchange of Greeks and Moslems who respectively inhabit Constantinople or Western Thrace; that this word refers to a situation of fact constituted, in the case of the persons in question, by residence of a lasting nature; 2. That, in order that the persons referred to in Article 2 of the Convention of Lausanne as " Greek inhabitants of Constantinople " may be considered as " established " under the terms of the Convention and exempted from the compulsory exchange, they must reside within the boundaries of the Prefecture of the City of Constantinople as defined by the law of 1912, have arrived there, no matter whence they came, at some date pre1 P. C. I. J. (B), No. 10, p. 24. 2 Supra, p. 102, n. 1. > P. C. I. J. (B), No. 10, pp. 25-26.

i o

8

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vious to October 30th, 1918; and have had, prior to that date,, the intention of residing there for an extended period. T h e significance of the case in connection with the principles of ascertaining standard lies in the fact that the courtt did not appear to be satisfied with the meaning and scope of the word " established " in the abstract, but inquired into the sense which the authors of the agreement attached to the term. That on different occasions it refused to accept the Turkish contention was due chiefly to the lack of proof demanding such respect therefor, rather than to any arbitrary denial of the right of the contracting parties to utilize the word " established " to convey the same legal attributes, possessed by the term " domicile." For this reason, the reference by the court to the convention as " self-contained " ought not to be deemed to manifest a deduction solely from; the literal aspect of the phraseology employed. V. T H E M A N I N A T A R B I T R A T I O N CASE

Comparable to the ascertaining of the sense of the term " established " involved in the foregoing case, the adjudication of the claim of the heirs of Juan Maninat decided by the French-Venezuelan Mixed Claims Commission of 1902 1 dealt with the ascertaining of the sense of the term "Frenchmen". In both cases the tribunal denied the ruling force of one national law over another, inasmuch as the standard employed in an international agreement must be considered inherently mutual rather than individual in nature. Juan Maninat, born in France, November of traumatic tetanus in Venezuela, May 13, as next of kin Rose Clotilde Maninat, born and wife of a Peruvian, Josefina Maninat,

4, 1864, died 1898, leaving in Venezuela said to haive

1 Ralston, Report of French-Venesuelan Mixed Claims Commission of 1902 (Washington, D. C., 1906), pp. 44-80; S. Doc., No. 533, 559th Cong., 1st Sess.

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i0g

been born in France, and wife of one who was born in Mexico of parents having French nationality, Justina Maninat, said to have been born in France and married in Panama to one who was born in France, Juan Pedro de Jesus Maninat, born in Venezuela, and Juana Maninat, born in Venezuela and residing in Peru. The parents of these Maninat heirs were of French nationality. Pedro resided in France from the time when he was a year old to his nineteenth year, from which time he began to do business in Venezuela. Eventually Juan came to Venezuela and entered into a mercantile relation with Pedro. They established their principal concern at Valencia and had branches at Tinaquillo and San Carlo. On April 15, 1898, an officer under General Vizcarrondo whose government troops were stationed at Tinaquillo demanded of Juan Maninat certain supplies for the army in the form of a requisition. Maninat refused to comply with the demand except on condition that an order be signed by the general. In consequence, the general placed him under arrest and on his way to confinement he received a severe wound from one of the military officers. On April 18, the French legation at Caracas officially informed the Minister of Foreign Affairs of Venezuela of this matter, and asked that Maninat be released from confinement. On intervention from Caracas Maninat regained his freedom, but died subsequently. Inasmuch as the tribunal was organized under and in virtue of the convention of February 19, I902, 1 providing that it " might examine demands for indemnity presented by Frenchmen for damages sustained in Venezuela," the outstanding question of jurisdiction depended upon the determination of the nationality of the claimant. In other 1

Cf. the opinion of the umpire given in the Stevenson Case. Ralston, Venezuelan Arbitrations of 1903 (Washington, D. C., 1904), p. 438.

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words, the tribunal was confronted with the task of ascertaining the sense in which the term " Frenchmen " was employed by the contracting parties of the convention. The commissioner for France argued that the establishment of the French citizenship of Juan Maninat at the time of his death was sufficient to give jurisdiction to the tribunal, but the commissioner for Venezuela insisted that there must be a French citizen in esse and having a demand for indemnity on account of damages suffered from the injury to and death of Juan Maninat, before the mixed commission could assume competency. Among the most interesting issues was whether the tribunal should consider a claimant French or Venezuelan if he was of double nationality according to the national laws of the two countries. In this connection, the stand taken by the mixed commission appeared to present an apparent difference from that taken by the Permanent Court of International Justice with respect to the case of the exchange of Turkish and Greek populations. When the word " established " demanded interpretation the Permanent Court held that neither the national legislation of Turkey was to be considered as an obstacle against giving the term an interpretation according to international law, nor was the overruling of that national legislation regarded as an infringement of Turkish sovereignty. But the umpire of the mixed commission declared : 1 When by the law of the respondent Government the claimant is a Venezuelan, France may not intervene, as to do so would make her law superior to the law of Venezuela, which is not permissible as between two sovereign nations. The right of Venezuela, as the respondent Government, to regulate her own internal affairs and to determine who are her citizens, involving mutual protection and support, is too essential an attribute of 'Ralston, Report of French-Venezuelan Mixed 1902 (Washington, D. C., 1906), pp. 74-75.

Claims Commission

of

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III

sovereignty to be invaded or disturbed. If the treaty bore unmistakable evidence that this attribute of sovereignty had been abdicated, it would be the duty of this tribunal to act accordingly, but it bears no such evidence. While on the surface the two decisions do not seem to be reconcilable, a careful analysis easily yields the logical conclusion that evidence could be taken as the basis of ascertaining the sense of the term employed in either of the two cases. That the word " established " was not interpreted according to the domestic legislation of Turkey was on account of the lack of " any indication that the authors of the Convention, when they adopted the word . . . . had in mind national legislation at a l l . " 1 That the word " Frenchmen" was interpreted with due regard to the national law governing nationality was because of the lack of " unmistakable evidence that this attribute of sovereignty had been abdicated." It is a significant observation, therefore, that in the course of ascertaining the genuine sense in which terms have been used the tokens of evidence are the only safe guidance upon which international courts ought to base their judgments. If the factors of evidence were not taken into consideration, the two views about the respective terms " established " and " Frenchmen " entertained by the two esteemed tribunals in relation to national sovereignty would be difficult to harmonize. A s the cases stood, both tribunals recognized the supremacy of evidence. Thus, if there had been evidence to the effect that the negotiators of the Lausanne Convention of January 30, 1923, employed the term " established " in accordance with the Turkish legislation and that the framers of the French-Venezuelan protocol of February 19, 1902, employed the term " Frenchmen " to designate Frenchmen who were at the same time 1

P. C. I. J. (B), No. 10, p. 20.

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deemed to possess Venezuelan nationality, very different decisions might have been made. In view of the illustrative nature of several other points involved in the ascertaining of the sense of the term " Frenchmen " the case deserves further attention. A s has been noted, the protocol of February 19, 1902, provided that the mixed commission " might examine demands for indemnity presented by Frenchmen for damages sustained in Venezuela." To this provision the umpire gave first a general interpretation that a claim did not exist because of damages which had been suffered in Venezuela, but only in reference to damages suffered in Venezuela by Frenchmen who, as such, were claimants before the mixed commission. It was not the injury done to Juan Maninat alone, but also damages suffered by Frenchmen, if such there be, through and because of the injury to and death of Juan, which gave place to a claim under the protocol. " This particular reclamation," declared the umpire, " rests upon the right of the next of kin of Juan to present a claim. Their ability to do so will depend upon the character of their citizenship; if any be French the claim stands; if all be Venezuelan there is no jurisdiction." 1 With this generalization in mind umpire Plumley undertook to examine who were the qualified claimants, namely, Frenchmen. According to the record of her marriage Justina was born in France, and during her married life she was undoubtedly French, the nationality of her husband. By French law this nationality continued after the death of her husband, as she did nothing since to divest herself of such nationality. While by Venezuelan law if she were of Venezuelan birth and Venezuelan at the time of her marriage, her Venezuelan nationality would be returned to her after the death of her husband, there was no evidence that she ever was Venez1

Ralston, op. cit., p. 71.

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113

O n the other hand, there was positive proof that she

was F r e n c h by marriage and by origin, if not by birth. F o r these reasons, the umpire reached the conclusion that Justina was o f French nationality and qualified as a claimant before the mixed commission.

R o s a Clotilde and J u a n a

being either Venezuelans or Peruvians, and Pedro, though passing a portion of his minority in France, having never asserted French nationality at the time when the claim had its inception, were considered incompetent to be claimants before the tribunal.

Y e t there was no doubt that aside from

Josefina, who did not present any claim before the commission, and Justina, who was considered to be a qualified claimant, the other next o f kin were F r e n c h by French law and Venezuelan by Venezuelan law.

W a s a person who

was F r e n c h by F r e n c h law and Venezuelan by Venezuelan law a qualified " Frenchman " t o present a claim in the sense that the negotiators o f the protocol attached to the term?

I n other words, was the term employed in a sense

upheld by the national law o f one contracting state, or in one recognized by both parties ?

Obviously the latter course

was the true course unless there was evidence to the contrary.

In this respect the simple statement o f the umpire is

worthy of note : 1 A treaty is a solemn compact between nations. It possesses in ordinary the same essential qualities as a contract between individuals, enhanced by the weightier qualify of the parties and by the greater magnitude of the subject-matter. T o be valid, it imports a mutual assent, and in order that there may be such mutual assent there must be a similar understanding of the several matters involved. It can never be what one party understands, but it always must be what both parties understood to be the matters agreed upon and what in fact was the agreement of the parties concerning the matters now in dispute. 1

Ralston, op. cit., pp. 73-74.

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In this case did Venezuela agree in the protocol that France alone should name those who are Frenchmen, or did France agree in the protocol that Venezuela alone should make the selection; or does the protocol, being an agreement, imply that the word Frenchman as there used shall mean such only as are recognized by the laws of both countries? It is evident that the high contracting parties agreed on this point, and yet both parties knew that there was in fact a very essential difference in the holding of each country upon that question. How, then, could they reach a point of agreement? Only by meeting upon a ground common to both; and that common ground is the plain where by the laws of both countries the claimant is a Frenchman. With such a process of reasoning the umpire declared that Justina was the only next of kin of Juan Maninat, who under the protocol of February 19, 1902, had the quality of Frenchman which made her competent to present the claim for indemnity before the mixed commission. That the mutual instead of individual standard was sustained by the tribunal was indicative of the stress laid on the sense agreed upon by the contracting states in respect to the term " Frenchmen ". While the procedure followed by the umpire is well in accordance with the scientific principles of ascertaining standard, certain judicial utterances are not entirely unimpeachable. The learned umpire did not seem to be absolutely immune from the influence of the socalled rules of construction, even though he was reasonably free from their danger. Considering as he did the sense of the term " Frenchmen " as one recognized by the laws of both France and Venezuela, the umpire said: "This process of reasoning seems to dispose of all genuine doubt as to what is meant by this term as used in the protocol; yet were there room for doubt the ordinary rules of interpre-

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tation would be efficient aids." 1 Although no rules were actually invoked to help in drawing his conclusions, his contention was undoubtedly weakened by the recognition of the efficacy of rules. "Among others," proceeded the umpire, " there is the rule of interpretation that where the agreement is susceptible of two interpretations, that interpretation is to be taken which is least onerous upon the party who must render the service or suffer the loss under the agreement." 2 While the questionable nature of such a rule itself need not be discussed in this connection, it is interesting to mention that even in the same opinion of the umpire there are certain remarks the soundness of which would disprove the validity of the aforesaid rule. Adverting to the final award in the claim, the umpire succinctly declared: " Generosity is not equity; equity has no part in generosity. Equity exists when exactly the right thing is done between the parties. Neither more nor less than this is equity. A just conclusion only opens the door to equity." 3 The reasonableness of this statement is easily seen, but its conflict with the rule of rendering an interpretation " least onerous upon the party who must render the service or suffer 1 Ralston, op. cit., p. 74. In answering the F r e n c h commissioner w h o argued that in default of Frenchmen l a w f u l l y entitled to the award, the national treasury of the French Republic would be competent to receive the same, the umpire s a i d : " T h e restrictive interpretation given by the umpire in this opinion f o l l o w s a well-defined and quite generally constant line of decision by arbitral tribunals whenever the question has been raised and the terms of the convention were in spirit s i m i l a r . . . . Nothing is easier than to w a l k in the path so well defined by the able minds w h o planned and built i t . . . . F o r the rules of construction and interpretation which have been of great service to the umpire, see Ralston's Venezuelan A r b i trations of 1903, pp. 352 to 355, both inclusive," ibid., p. 72. H e w h o f o l l o w s the scientific procedure of ascertaining standard, however, should not indulge so much in walking in the easy path built by others as in delving into the various sources of evidence peculiar to the individual case itself. 2

Ibid., p. 7 4 ; cf. supra, p. 93.

3

Ralston, op. cit., p. 79.

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the loss tinder the agreement " can hardly be gainsaid. Since equity requires a just treatment instead of a generous grant, one might reasonably ask why the rule should be taken as decisive that the party " who must render the service or suffer the loss under the agreement" should be placed in a more favorable position than the opposing party? If it is the agreement that is to be interpreted, the sense attached to the terms therein by the contracting parties is the chief object to be ascertained, and if evidence sustains a particular signification, that signification must be the one to be sustained even if it may create obligations onerous to the party rendering the service or suffering the loss. Nevertheless, the interpretation of the word " F r e n c h m e n " in the Maninat Arbitration Case, though not absolutely free from the influence of rules of construction, demonstrated well the fundamental principles of ascertaining standard, and the word " Frenchmen" was viewed in the sense in which both France and Venezuela agreed upon rather than in deference to the national law of one of the two contracting states. 1 VI. THE PANAMA CANAL TOLLS CASE

That the principles of ascertaining the standard of interpretation must be based on external sources of evidence is vividly shown in the case of the controversy between the United States and Great Britain over the Panama Canal tolls. 2 From the diplomatic correspondence exchanged by 1 Cf. the reasoning in relation to the interpretation of Articles III and X I I I of the treaty of commerce and navigation of February 26, 1871, between the United States and Italy, which provided that the Italians were on equal footing with the natives, where it was declared that " the word ' natives' must be understood as meaning the Americans of the State—the Californians in California, Virginians in Virginia, Pennsylvanians in Pennsylvania — and that Italians in Pennsylvania should therefore be treated as the Americans of Pennsylvania — ' natives'." U . S . For. Rel., 1910, p. 658.

* U. S. For. Rel., 1912, pp. 467-489; 19*3, PP 540-549; i 9 ' 4 , PP- 317-318. S . Doc., No. 474, 63rd Cong., 2nd Sess., passim. See Hyde, op. cit., vol. i, p. 341, n. 4 ; p. 343, n. 1.

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117

the two governments it appeared clear that the standard employed by the contracting parties would not permit an interpretation deliberately put forth by one party so as to further its own freedom of action. According to the terms of the Hay-Pauncefote Treaty of November 18, 1901, 1 which modified and superseded the Clayton-Bulwer Treaty of April 19, 1850, 2 the United States agreed with Great Britain that as a basis of arrangement concerning the Panama Canal, several rules, substantially as embodied in the Convention of Constantinople of October 28, 1888, for the free navigation of the Suez, 3 should be adopted. The first of these rules provided that * The canal shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable. It was over the question of the significance of this provision with respect to the right on the part of the United States to exempt its o w n vessels in the coastwise trade from payment of tolls that caused an exchange of a series of diplomatic notes between the two countries during the years 1912-1914, involving therein several noteworthy points illustrative of the principles of interpretation. In His congressional message of December 21, 1911 5 on the financial condition of the Treasury, the President of the United States requested that he should be given the 11 1

U. S. Treaties, 782.

Ibid., 659.

* See 79 Brit & For. St. Pap. 18; 3 Am. J. Int. L. Supp. 123. * 1 U. S. Treaties 783. 5

H. Doc., No. 343, 62nd Cong., 2nd Sess.; U. S. For. Rel., 1912, p. 468.

H8

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power to fix the tolls of the Panama Canal. In addition, he entertained the belief that since the canal was built by American money and since it had been the common practice of many nations to subsidize their own merchant vessels, the United States possessed the power to exempt its own shipping from payment of tolls. 1 T o this proclamation and a number of other proposals for exempting American shipping from payment, the British Chargé d'Affaires, Mr. A. Mitchell Innes, lodged a protest on July 8, 1 9 1 2 , 2 contending that the American proposition would infringe the HayPauncefote Treaty. In the course of presenting his arguments, Mr. Innes summed up the American plan of exemption under four categories, namely, " ( 1 ) T o exempt all American shipping from the tolls; ( 2 ) T o refund to all American ships the tolls which they may have paid; ( 3 ) T o exempt American ships engaged in the coastwise trade; ( 4 ) T o repay the tolls to American ships engaged in the coastwise trade," and declared that there was no "difference in principle between charging tolls only to refund them and remitting tolls altogether." A significant point involved here, therefore, was whether the treaty would permit the Government of the United States to charge and refund to American ships engaged in the coastwise trade. It was argued by the United States that a refund of the tolls would be nothing more than a subsidy to the American shipping, which was not prohibited by the treaty. But the British 1 " I am very confident that the United States has the power to relieve from the payment of tolls any part of our shipping that Congress deems wise. W e own the canal. It was our money that built it. W e have the right to charge tolls for its use. Those tolls must be the same to everyone; but when we are dealing with our own ships, the practice of many Governments of subsidizing their own merchant vessels is so well established in general that a subsidy equal to the tolls, an equivalent remission of tolls, can not be held to be a discrimination in the use of the canal."

Ibid., p. 468. %

Ibid., p. 4O9.

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objection was by no means groundless inasmuch as the method of refunding the tolls in preference to that of remitting them would contravene the spirit and high purpose of the treaty, though perhaps complying with the letter of the agreement. It seemed to be plain that the design of the treaty was to put every nation using the canal on a basis of equality, and not to discriminate in favor of vessels of the United States as against those of Great Britain. The fact that the treaty did not provide specifically against subsidizing American shipping generally, did not appear to accord a right to the United States to subsidize particularly those using the canal. " There is a great distinction," so Mr. Innes maintained, " between a general subsidy, either to shipping at large or to shipping engaged in any given trade, and a subsidy calculated particularly with reference to the amount of users of the Canal by the subsidized lines or vessels." 1 In spite of the British remonstrance, however, the " Act to provide for the opening, maintenance, protection and operation of the Panama Canal, and the sanitation and government of the Canal Zone " was signed by President T a f t on August 24, 1 9 1 2 . Section five of this legislation read in p a r t : 2 That the President is hereby authorized to prescribe and from time to time change the tolls that shall be levied by the Government of the United States for the use of the Panama Canal: Provided, That no tolls, when prescribed as above, shall be changed, unless six months' notice thereof shall have been given by the President by proclamation. No tolls shall be levied upon vessels engaged in the coastwise trade of the United States. That section forty-one hundred and thirty-two of the Revised Statute is hereby amended to read as follows: " Sec. 4132. . . . When based upon net registered tonnage 1 1

U. S. For. Rel., 1912, pp. 469-470.

1bid.,

pp. 471-472.

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for ships of commerce the tolls shall not exceed one dollar and twenty-five cents per net registered ton, nor be less, other than for vessels of the United States and its citizens, than the estimated proportionate cost of the actual maintenace and operation of the canal, subject, however, to the provisions of article nineteen of the convention between the United States and the Republic of Panama, entered into November eighteenth, nineteen hundred and three. . . ." Accompanying this Act, President T a f t reiterated the contention of the United States in a memorandum, wherein he expressed the conviction that the phrase " on terms of entire equality" found in the Hay-Pauncefote Treaty should be interpreted to signify an equality of privileges given by the United States to other nations rather than to exclude the freedom of the United States to regulate its domestic or foreign commerce. T o him, the right to the use of the canal was but " a conditional favored nation treatment, the measure of which in the absence of express stipulation to that effect, is not what the country gives to its own nationals, but the treatment it extends to other nations." 1 T h e diffi1 President T a f t continued: " I f there is no 'difference in principle between the United States charging tolls to its own shipping only to refund them and remitting tolls a l t o g e t h e r a s the British protest declares, then the irresistible conclusion is that the United States, although it owns, controls and has paid for the canal is restricted by treaty from aiding its own commerce in the way that all the other nations of the world may freely do The British protest, therefore, is a proposal to read into the treaty a surrender by the United States of its right to regulate its own commerce in its own way and by its own methods, a right which neither Great Britain herself, nor any other nation that may use the canal, has surrendered or proposes to surrender. The surrender of this right is not claimed to be in terms. It is only to be inferred from the fact that the United States has conditionally granted to all the nations the use of the canal without discrimination by the United States beween the grantees; but as the treaty leaves all nations desiring to use the canal with full right to deal with their own vessels, as they see fit, the United States would only be discriminating against itself if it were to recognize the soundness of the British contention." Ibid., pp. 476-477.

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culty, however, in sustaining such an argument did not lie so much on the reasonableness of adopting a special standard as on the lack of evidence to prove such adoption. In a dispatch to the British Ambassador at Washington dated November 14, 1 9 1 2 , 1 S i r E d w a r d Grey, Secretary of State f o r Foreign A f f a i r s of Great Britain, outlined the various aspects in ascertaining the sense of the Hay-Pauncefote Treaty and refuted the interpretation of the President of the United States as set forth in the latter's memorandum. T o f o r t i f y the British stand, S i r E d w a r d Grey reviewed the general purpose of the Hay-Pauncefote Treaty, and the history leading up to its conclusion. Not only that the Hay-Pauncefote Treaty formed a corollary of the Clayton-Bulwer Treaty of 1 8 5 0 was a point difficult to deny by the American government, but also a brief survey of the earlier agreement could not but yield a strong impression against the American argument. T o be precise, the circumstances under which the Hay-Pauncefote Treaty was made were indicative of the fact that the words " all nations . . . on terms of entire equality " could hardly be taken as excluding the United States. Thus, in support of his reasoning, Sir E d w a r d Grey introduced as extrinsic evidence a statement of Mr. H a y who, as Secretary of State, negotiated the Hay-Pauncefote Treaty. Referring to the regulations f o r the canal, M r . Hay, in his full account of the negotiations sent to the Senate Committee on Foreign Relations, remarked that " These rules are adopted in the treaty with Great Britain as a consideration f o r getting rid of the ClaytonBulwer T r e a t y . " 2 Utilizing such kind of external information to refute President T a f t ' s consideration of " con1 This dispatch was handed to the Secretary of State of the United States by the British Ambassador on December 9, 1912.

' S. Doc., No. 746, 61st Cong., 3rd Sess.

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ditional favored nation treatment," Sir Edward Grey declared : 1 If the rules set out in the Hay-Pauncefote Treaty secure to Great Britain no more than most-favored-nation treatment, the value of the consideration given for superseding the Clayton1 U . S. For. Rel., 1912, p. 485. See communication of Mr. H a y , Secretary of State, to M r . Cullom, Chairman of the Senate Committee on Foreign Relations, December 12, 1901 ( S . Doc., No. 474, 63rd Cong., 2nd Sess., 54-56) : " T h e Clayton-Bulwer treaty of 1850, which contemplated the construction of a canal under the joint auspices of the two Governments, to be controlled by them jointly, its neutrality and security to be guaranteed by both, was almost from the date of its ratification the subject of frequent discussion and occasional irritation between the two Governments. Nearly half a century elapsed without any step being taken by either toward carrying it into practical effect by the construction of a canal under its provisions. Instead of being, as was intended, an instrument f o r facilitating the construction of a canal it became a serious obstacle in the w a y of such construction.... But the Clayton-Bulwer treaty stood in the way. Great Britain did not manifest, and it is believed did not entertain, the remotest idea of joining or aiding in such a work. The United States was able to bear alone the entire cost of the canal, but was apparently prohibited by the existing treaty from undertaking the enterprise which, although carried out at its own expense, would redound to the benefit of the world's commerce quite as much as to its own advantage. The President, loyal to treaty obligations, was unwilling to countenance any demand, however widespread, for proceeding with the construction of the canal until he could obtain by friendly negotiation, on which he confidently relied, the consent of Great Britain to the abrogation of the Clayton-Bulwer treaty, or such a modification of its terms as would enable the United States untrammeled to enter upon the great w o r k . . . . Such was the situation in which the negotiations f o r the supersession of the treaty were commenced and have been conducted, and we can not but recognize the fair and friendly spirit in which the successive overtures of the United States toward that end have been met by Great B r i t a i n . . . . In the new d r a f t of treaty the clause superseding the Clayton-Bulwer treaty was made the subject of a separate article and was submitted to the consideration of the British Government upon terms which would permanently secure the neutrality of the canal for the use of all nations on terms of entire equality and at the same time would relieve Great Britain of all responsibility and obligation to enforce the conditions which by the former treaty, had been imposed upon or assumed by her jointly with the United States."

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Bulwer Treaty is not apparent to His Majesty's Government. Nor is it easy to see in what way the principle of article 8 of the Clayton-Bulwer Treaty, which provides for equal treatment of British and United States ships, has been maintained. Throughout the documents, therefore, the issue was whether the standard of interpretation insisted on by the United States was supported by evidence. Sir E d w a r d Grey was inclined to believe that the evidence available supported the British stand. He offered, apparently with great confidence of a British victory before an arbitral tribunal, to have the case brought to arbitration. 1 In answer to the British proposal f o r arbitration, however, Mr. K n o x , Secretary of State, dispatched a note to the American Charge d'Affaires at London on January 17, 1913, 2 contending therein that the situation did not warrant such adjudication because diplomacy had not as yet been exhausted," and at any rate Great Britain had not received 1 " His Majesty's Government feel no doubt as to the correctness of their interpretation of the treaties of 1850 and 1901, and as to the validity of the rights they claim under them for British shipping; nor does there seem to them to be any room for doubt that the provisions of the Panama Canal Act as to tolls conflict with the rights secured to their shipping by the treaty. But they recognize that many persons of note in the United States, whose opinions are entitled to great weight, hold that the provisions of the Act do not infringe the conventional obligations by which the United States is bound, and lander these circumstances they desire to state their perfect readiness to submit the question to arbitration if the Government of the United States would prefer to take this course." U. S. For. Rel., 1912, pp. 488-489.

' U. S. For. Rel., 1913, pp. 540-547. 3 " The answer to this objection [that the regulations might not prove workable in restricting exemption to bona-fide coastwise traffic], therefore, apart from any question of treaty interpretation, is that it rests on conjecture as to what may happen rather than upon proved facts, and does not present a question requiring submission to arbitration as it has not as yet passed beyond the stage where it can be profitably dealt with by diplomatic discussion. It will be remembered that only questions which it may not be possible to settle by diplomacy are required by our arbitration treaty to be referred to arbitration." Ibid., p. 544.

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any actual damage from the Panama Canal Act upon which she could base her complaint. " Throughout his discussion of the subject," so did Mr. Knox declare, " Sir Edward Grey deals chiefly with the possibilities of what the President might do under the Act, which in itself does not prescribe the tolls, but merely authorizes the President to do so; and nowhere does the note indicate that S i r Edward Grey was aware of what the President actually had done in issuing this proclamation." 1 But with this view Great Britain did not show a sign of reconciliation. In a note to the Secretary of State dated February 27, 1 9 1 3 , Lord Bryce, British Ambassador at Washington, insisted that international law or usage does not support the doctrine that the passing of a statute in contravention of a treaty right affords no ground of complaint for the infraction of that right, and that the nation which holds that its treaty rights have been so infringed or brought into question by a denial that they exist, must, before protesting and seeking a means of determining the point at issue, wait until some further action violating those rights in a concrete instance has been taken, which in the present instance would, according to your argument, seem to mean, until tolls have been actually levied upon British vessels from which vessels owned by citizens of the United States have been exempted.2 Thus the diplomatic tension between the two countries grew more irritating, and for a time the settlement of the dispute by arbitration seemed to be inevitable. Incidentally, the change of administration in the United States saved the situation. Realizing the difficulty of maintaining the argu1

U. S. For. Rel., 1913, p. 541. Cf. the controversy between Mexico and the United States over the interpretation of the Mexican constitution of 1917. Gaither, " The Interpretation of the Confiscatory Phases of the Mexican Constitution of 1917," 56 Am. L. Rev. 93. 2 U. S. For. Rel., 1913, p. 548.

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ments hitherto entertained by the American Government, and recognizing the lack of evidence in support of the special standard discriminating in favor of American shipping, President Wilson, in an address delivered at a joint session of the two Houses of Congress on March 5, 1914, wisely made a request to repeal that provision of the Panama Canal Act which Great Britain considered to be an infraction of the Hay-Pauncefote Treaty. 1 The Congress complied with 1 In view of the significance and lucidity of President Wilson's appeal, his brief, well-worded address is worthy of note:

" G E N T L E M E N OF T H E C O N G R E S S : I have come to you upon an errand which can be very briefly performed, but I beg that you will not measure its importance by the number of sentences in which I state i t N o communication I have addressed to the Congress carried with it graver or more far-reaching implications as to the interest of the country, and I come now to speak upon a matter with regard to which I am charged in a peculiar degree, by the Constitution itself, with personal responsibility. " I have come to ask you for the repeal of that provision of the Panama Canal Act of August 24, 1912, which exempts vessels engaged in the coastwise trade of the United States from payment of tolls, and to urge upon you the justice, the wisdom, and the large policy of such a repeal with the utmost earnestness of which I am capable. " In my own judgment, very fully considered and maturely formed, that exemption constitutes a mistaken economic policy from every point of view, and is, moreover, in plain contravention of the treaty with Great Britain concerning the canal concluded on November 18, 1901. But I have not come to urge upon you my personal views. I have come to state to you a fact and a situation. Whatever may be our own differences of opinion concerning this much debated measure, its meaning is not debated outside the United States. Everywhere else the language of the treaty is given one interpretation, and that interpretation precludes the exemption I am asking you to repeal. W e consented to the treaty; its language we accepted, if we did not originate it; and we are too big, too powerful, too self-respecting a nation to interpret it with a too strained or refined reading the words of our own promises just because we have power enough to give us leave to read them as we please. The large thing to do is the only thing we can afford to do, a voluntary withdrawal from a position everywhere questioned and misunderstood. W e ought to reverse our action without raising the question whether we were

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the President's request, and the incident was amicably closed. 1 T h e significance of this case, not unlike the others, lies in the fact that in the course of ascertaining the sense of terms, evidence is the essential aid to be invoked. T h a t the British interpretation should prevail over the American interpretation was not because of the difficulty of fitting the American standard into the text of the Hay-Pauncefote Treaty. In fact, even Sir Edward Grey frankly admitted the possibility of giving those " who read nothing but the text of the Hay-Pauncefote Treaty itself " an impression that the words " all nations " in the controversial clause could not include the United States. 2 Y e t scientific interpretation has to go beyond the text of the treaty; and it demands a search of all available evidence in order to uphold a special standard. 3 Inasmuch as the contention of the United States was not supported by the necessary eviright or wrong, and so once more deserve our reputation for generosity and for the redemption of every obligation without quibble or hesitation. " I ask this of you in support of the foreign policy of the administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure." U. S. For. Rel., 1914, p. 317. 1

For the Act repealing the exemption, approved on June 15, 1914, see

ibid., p. 3 1 8 . 2

U. S. For. Rel., 1912, p. 485.

See communication of Mr. Hay, Secretary of State, to General Reyes, January 5, 1904 (U. S. For. Rel., 1903, p. 296) : " Such was the precise situation when the United States manifested its determination to construct the great highway across the American isthmus. Its purpose was universally applauded. The circumstance that this Government possibly might, in return for the great expenditures which it was about to hazard, derive from the construction of the canal some special advantage was not thought to be a reason for opposing what was to be such vast benefit to all mankind. The Clayton-Bulwer treaty was conceived to form an obstacle, and the British Government therefore agreed to abrogate it, the United States only promising in return to protect the canal and keep it open on equal terms to all nations, in accordance with our traditional policy." s

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dence, it is possible that had the dispute been brought before an arbitral tribunal, and had the arbitrators applied the scientific principle of interpretation, the American interpretation would have been rejected. VII.

CONCLUSION

It is not to be inferred from the foregoing that the cases analyzed signify the typical instances illustrative of all the principles cognate to the problem of ascertaining standard of interpretation. Nor should they be considered as the leading decisions rendered by the well-known arbitral and international courts. They were selected from the awards of several scattered tribunals as well as from the settlements of certain diplomatic disputes with the particular purpose of demonstrating only the vital phases involved in ascertaining the standard interpretation. In spite of the fact that many illuminating judicial judgments may be found in any one court, no two cases examined in this chapter have been selected from the same tribunal. While the cases so selected are by no means indices of the reasoning of the respective tribunals responsible for their adjudications, they do exhibit, in a certain measure, the prevailing modes of interpretation in the judicial world as sponsored by some of the higher courts. The opinion of the Mixed Claims Commission between the United States and Germany in the Lusitania Cases displayed two distinct methods of ascertaining standard, first, to rely on data and facts manifested by attendant circumstances at the time when the agreement was made, and, secondly, to rely on rules of construction which fill the pages of writers belonging to the old school of interpretation. It is obviously true that the two procedures are fundamentally irreconcilable, and yet it is equally certain that tribunals do occasionally invoke the aid of both at the same time. That such invocation is pos-

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sible is a significant fact, because it is indicative of the doubtful value of rules in respect to scientific interpretation. T h e so-called rules of construction are so numerous that oftentimes reliance on them does not prove to be contradictory to a conclusion supported by evidence. But it would be either an undue inference or an unsound deduction, if such applicability should be taken in support of the efficacy of the rules of construction. In view of the fact that many of the judicial utterances of the Mixed Claims Commission are illustrative of the principles of ascertaining standard, its occasional reference to rules perhaps should not be regarded as overshadowing the large contribution which it has offered to the science of treaty interpretation. 1 1 For other illustrative cases decided by the Mixed Claims Commission see the claim of South Porto Rico Sugar Company, where the umpire adverting to the scope of losses "caused by the acts of Germany or her agent" maintained that the amount of premiums for insurance paid by the sugar company was not a valid claim. " The simple test," declared umpire Parker, " to be applied in all cases is: Has an American national proven a loss suffered by him susceptible of being measured with reasonable exactness by pecuniary standards, and is that loss attributable to Germany's act as a proximate cause? Applying this simple test to the facts in this group of cases [claims for the recovery of war-risk insurance premiums paid by American nationals] the Commission has no hesitation in holding that they do not fall within the terms of the Treaty of Berlin. They are not claims for injury or damage to, a destruction or conversion of, property by the acts of Germany or her agents. They are claims put forward to recover the amount of premiums paid for protection against possible happenings, which never in fact happened; for protection against risks to both neutral and belligerent commerce of a highly speculative and uncertain nature, incident to the very existence of a state of maritime warfare, participated in by both groups of belligerents." (M. C. C. [U. S. & Ger.], pp. 46-47.) Moreover, speaking of the signification of the terms " confiscation or condemnation and loss of property" as appeared in the treaties of 1785, 1799 and 1828 between the United States and Prussia, the umpire said: " that the claims for the recovery of war-risk insurance premiums paid by American nationals are not based on any alleged confiscation or condemnation or loss of property t»i the sense that these terms are used in those Treaties, but

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Furthermore, the exchange of notes between the United are rather to recover expenses incurred for protection against risks incident to the existence of a state of war, participated in by both groups of belligerents, claims not embraced within the terms of the Treaty of Berlin, which determines the jurisdiction of this Commission." (.Ibid., p. 48; italics author's.) The foregoing shows the readiness on the part of the commission to ascertain the sense in which certain terms were used. It is interesting to note that in the course of condemning the term " indirect claims " used in connection with the Alabama Case, and suggesting to substitute the term " remote" therefor, the commission invoked extrinsic evidence to justify its contention: " T h e use of the term ' indirect' as applied to the ' national claims' involved in the Alabama Case is not justified by the early debates in the Senate of the United States, by the record of the preliminary diplomatic negotiations, by the Treaty of Washington, by the 'American C a s e ' as presented by the American Agent, or by the Award. Its use in this connection has been productive of great confusion and misunderstanding. The use of the term to describe a particular class of claims is inapt, inaccurate, and ambiguous. The distinction sought to be made between damages which are direct and those which are indirect is frequently illusory and fanciful and should have no place in international law. The legal concept of the term ' indirect' when applied to an act proximately causing a loss is quite distinct from that of the term ' remote.' T h e distinction is important." (Ibid., p. 58.) Cf. the case of Steamship Rockingham where the umpire, maintaining that the sense in which the term "the naval and military works or materials" was used excluded armed merchantmen argued: " The arming for defensive purposes of a merchantman and the manning of such armament by a naval gun crew, coupled with the routing of such ship by the Navy Department of the United States for the purpose of avoiding the danger of submarines and the following by the civilian master of the ship of instructions given by the Navy Department for the defense of the ship when in danger of attack by submarines, certainly do not change the judicial status of the ship or convert it from a merchant ship to a war ship or make of it naval material." (Ibid., p. 88; see p. 100.) In the case of Maud Thompson de Grennes (ibid., p. 215), the commission in fortifying its decision against the qualification of an American woman, as a claimant, who had lost her nationality by her marriage to a Frenchman subsequent to the sinking of the Lusitania, resorted to extrinsic sources of evidence to sustain its standard of interpretation (ibid., p. 217) : " It is manifest from a careful reading of the whole of the diplomatic correspondence between the United States and Germany with respect to the sinking of the Lusitania, beginning with the note of May

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States and Mexico concerning a particular interpretation of the extradition treaty of 1 8 9 9 was indicative of the nature and danger of the so-called diplomatic interpretation, and the outstanding deduction from the case of the exchange of Greek and Turkish populations sustains another fundamental principle of ascertaining standard, to the effect that interpretation deals with the sense in which the contracting parties agreed to employ the terms rather than the meaning with which a national legislation is best harmonized. 1

It is the agreement

that is the subject of interpretation and the sense must be the mutual sense.

The Permanent Court of International

Justice did not uphold the Turkish contention chiefly because the term " established" was not employed by the parties in a specific sense designed to be in accordance with 10, 1915, that neither Government was attempting to deal with any specific claim or claims. The United States was asserting a principle and insisting that Germany should disavow the act of its submarine commander in sinking the Lusitania and give assurance that such acts would not recur. This is made perfectly clear by the telegrams from the American Secretary of State to the American Ambassador at Berlin of July 14 and 19, 1915,..." Similarly, in Administrative Decision No. VII dealing with the claims for loss of earnings, or profits and for loss or damages in respect of intangible property extrinsic evidence was invoked in support of a certain standard of interpretation (ibid., pp. 273,309): "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. The Pre-Armistice negotiations are found in the correspondence between the United States and Germany beginning with the note of the German Chancellor to President Wilson of October 6, 1918, and ending with the note of the Secretary of State of the United States to the German Government of November 5, 1918." Thus, in many a case decided by the Mixed Claims Commission, the scientific principles of ascertaining standard were closely observed. 1

See Adams v. Akerlund (168 111. 632, 638), where Mr. Justice Magruder declared: " Where treaties concern the rights of individuals [undoubtedly the rights of states also], it is frequently necessary for the courts to ascertain by construction the meaning intended [sense designed] to be conveyed by the terms used."

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Turkey's domestic legislation. Nevertheless, whether or not the term " established " was agreed upon with due regard to Turkey's domestic legislation was not presumed. It was viewed in the light of evidence. If there was proof that the framers of the protocol in question had in their mind the Turkish national law, the court should and probably would have hesitated in reaching the conclusion that it did.1 1 Several other adjudications of the Permanent Court of International Justice illustrative of the principles of interpretation are worthy of particular observation. In A d v i s o r y Opinion N o . 2 ( P u b . P . C . I. J. [ B ] , N o . 2 ) , when the question: " D o e s the competence of the International L a b o r Organization extend to the international regulation of the conditions of labor of persons employed in a g r i c u l t u r e ? " demanded the ascertaining of the signification of the term " agriculture " as to whether the latter w a s employed by the authors of the T r e a t y of Versailles to s i g n i f y one of the industries, the court maintained (ibid., p. 23) : " A s P a r t X I I I [of the T r e a t y of V e r s a i l l e s ] expressly declares, the design of the Contracting Parties w a s to establish a permanent labour organisation. T h i s in itself strongly militates against the argument that agriculture, w h i c h is, beyond all question, the most ancient and the greatest industry in the world, employing more than half of the world's wage-earners, is t o be considered as l e f t outside the scope of the International L a b o u r Organization because it is not expressly mentioned by name." T h u s the court in this respect appeared to recognize the necessity of ascertaining the standard f r o m " the design of the Contracting Parties " and g o beyond the strictly literal provision which would preclude what was " not expressly mentioned by name."

In the case of the British-French dispute over the nationality decrees in T u n i s and M o r o c c o ( P u b . P . C. I. J. [ B ] , N o . 4 ) , the court w a s confronted with the question of determining whether or not the promulgation by the French Government of decrees converting certain British subjects in the French Zone of Tunis and Morocco into F r e n c h citizens was by international l a w solely a matter of domestic jurisdiction within paragraph 8 of article 15 of the Covenant of the League of Nations. T h e argument of the British Government w a s that in so f a r as the abrogation and interpretation of treaties w e r e involved the question w a s one of international importance. T h e contention of the French Government w a s that French legislation upon nationality questions in T u n i s and M o r o c c o appertained to sovereign rights of France, and that the treaties invoked by Great Britain were inapplicable because of the doctrine of rebus sic stantibus. It is

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In the Maninat Arbitration Case the French-Venezuelan interesting to observe that the opinion of the court was severely attacked by a contemporary writer (Gregory, " A n Important Decision of the Permanent Court of International Justice," [17 Am. J. Int. L. 298-307]), who expressed regret that the court had been " controlled by no code and but little if at all limited by judicial precedent or scholastic opinion." If this criticism be true, the court should be congratulated for being free from the bondage of rules of construction. Mr. C. N. Gregory's chief complaint, however, was that the court did not depend upon precedent—thus there being a " departure from English and American precedent." In response, it has been well said: " I t would be exceedingly strange if an international tribunal should acknowledge itself bound to follow ' English and American precedent' or practice." (Hudson, The Permanent Court of International Justice [Cambridge, Mass., 1925], pp. 53-54.) Cf. 20 Am. J. Int. L. 133. When the provision of article 4 of the treaty of June 28, 1919 between the Principal Allied and Associated Powers and Poland was submitted for interpretation before the court (Pub. P. C. I. J. [B], No. 7), the Polish Government, endeavoring to attribute a special significance thereto, contended that the stipulation: " 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 here," should signfy merely that: " Of the individuals of German origin born in this territory, only those can claim Polish nationality whose parents were habitually resident there" on January 10, 1920 as well as on the day of the birth of the individual. In refuting this argument the court maintained that such an interpretation would " amount to an addition to the t e x t " and the clause of the treaty " leaves little to be desired in the nature of clearness." In the case of the Mavrommatis Palestine Concessions (Pub. P. C. I. J. [ A ] , No. 2), the dissenting opinions of Judge Moore and Lord Finlay are worthy of careful examination with reference to the interpretation of the vital clause "subject to any international obligations accepted by the Mandatory." A t the beginning of their opinions, it was stated that three conditions must be fulfilled in order that the jurisdiction of the Permanent Court under article 26 of the Mandate could be compulsory, namely, ( a ) the dispute must be a dispute between the Mandatory and another member of the League of Nations, (b) it must be a dispute which could not be settled by negotiations, and (c) it must be a dispute relating to the interpretation or the application of the provisions of the Mandate. While both

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of the two learned Judges denied that the dispute in question was one having connection with any of the three aforesaid categories, they found it necessary to attach to the clause a specific signification. " In my opinion," said Judge Moore, " the word ' accepted' applies only to obligations especially assumed " (Ibid., p. 68.) " I t is quite impossible," in the words of Lord Finlay, " to apply these words, ' international obligation accepted,' to international law either generally or in any particular respect. The words obviously refer to conventional obligations by treaty or other agreement; provisions of international law do not require acceptance to be binding but are binding by the sanction on which all international law rests, the general consent of nations. The words ' accepted by the Mandatory' show that the ' international obligation ' referred to are contractual, that is by treaty or convention...." (Ibid., p. 47.) Moreover, the constant need of interpretation because of the imperfect nature of human language is clearly shown in the case brought up before the court immediately after the judgment of the Mavrommatis Palestine Concessions controversy, namely, the case over the Monastery of SaintNaoum and the Albanian Frontier (Pub. P. C. I. J . [B], No. 9). Disagreements concerning the Saint-Naoum boundary arose during 1922 when, in a decision of the Conference of Ambassadors, the monastery was allocated to Albania. That decision was based upon the Protocol of London, 1913, which had stated that the western and southern shore of Lake Ochrida " from the village of Lim to the Monastery of Saint-Naoum" should form part of Albania. In the course of rendering the opinion, the court observed, in connection with the question whether the words " f r o m . . . to " should be taken as inclusive, that the Protocol of 1913 left the matter vague and ambiguous, and the " frontier undetermined ". Similarly, in the Eleventh Advisory Opinion, the court was confronted with the necessity of ascertaining the signification of the term "port of D a n z i g w i t h respect to the right of Poland to set up letter boxes and to collect and deliver postal matter (Pub. P. C. I. J . [B], No. 1 1 ) . Note also the undue reliance of Danzig on the rule of strict construction in her favor, and the interesting but not unexpected attitude of the court that " the rules as to a strict or liberal construction of treaty stipulations can be applied only in cases where ordinary methods of interpretation have failed." The principle of invoking extrinsic evidence was involved in the Twelfth Advisory Opinion dealing with the interpretation of paragraph 2 of article 3 of the Treaty of Lausanne (Pub. P. C. I. J . [B], No. 12). The Turkish representative argued that an earlier draft of the said provision (see

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the same principle of ascertaining standard when the term " Frenchmen " was interpreted not according to the national laws of either France or Venezuela, but according to the understanding common to both. The theory is that since the inherent nature of an international stipulation must not be considered as an unilateral act, it is natural that the true standard must be the mutual standard. Yet the easy rut which arbitral tribunals are apt to follow is the temptation of presumed conclusions. The scientific process of ascertaining standard goes beyond the apparent outlook; it delves into what is supported by evidence. " To walk in the path so well defined by the able minds who planned and built i t " might not be walking in the logical direction, inasmuch as the standards in each case are the outcome of a peculiar set of circumstances under which the framers of the agreement selected them. Nor should any salutary presumption of the competence of the negotiators be taken as of special value. The umpire in the Maninat Case commented that "The language of the protocol is the work of skilled and erudite diplomatists. Every word is weighed and its force and significance are definite and certain." As has been repeated elsewhere, language is only an imperfect means to a temporary end, and as such cannot be entrusted to convey an idea with flawless precision. The reliance on the supposition that the words of " skilled and erudite diplomatists " are Br. Pari. Sess. Pap., Turkey No. i [1923], Cmci. 1814, p. 688) as well as certain statements made by Lord Curzon at the Lausanne Conference on January 23, 1923 (see ibid., p. 4 0 1 ) threw light on the sense of terms employed. The court, however, was inclined to adhere to a literal and restrictive interpretation, and considered the stipulation so clear that it was not necessary to take into account the work done in preparation of the Treaty of Lausanne. Nevertheless, since the Turkish representative pressed the issue through the Lausanne negotiations, the court was not unwilling to look to them as a source of evidence. On examining the utterances of Lord Curzon, it found out that they were not referring to article 3.

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135

" definite and certain " appears to be restrictive of the scientific method of analyzing the data and facts cognate to each individual instance. What is more, any habit of the interpreter in placing too much faith in " skilled and erudite diplomatists " may not unfrequently lead him into the very trap which a particular negotiator may have contrived for the benefit of his own country. T o divine a standard from the secondary personal attributes of the negotiators rather than from the primary evidence indicative of the design in the employment of that standard is at best a dangerous process. In this respect, the French-Venezuelan Mixed Claims Commission of 1902 did not seem to be entirely immune from the influences of certain presumptions, even though its emphasis on the mutual standard of the term " Frenchmen " was illustrative of the principles of ascertaining standard.1 Thus the importance of searching for evidence in aid to the ascertaining of the standard of interpretation is vividly

appreciated in the Panama Canal Tolls Case. The diplomatic notes exchanged between the United States and Great Brit1 That in the Mavrommatis Palestine Concessions Case (Pub. P. C. I. J . [ A ] , No. 2 ) the Permanent Court of International Justice with respect to the question of the two versions in which a treaty was executed sustained an 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 [design] of the parties " afforded a similar manifestation of recognizing the mutual standard of interpretation. For other illustrative cases awarded by the French-Venezuelan Commission see the Antoine Fabiani Case (Ralston, Reports of FrenchVencsuelan Mixed Claims Commission of 1902 [Washington, D. C., 1906], pp. 81-146), where article 5 of the convention of November 26, 1885 between France and Venezuela was submitted to interpretation. Note the effort on the part of the Swiss arbitrator to determine the scope, depth, and breadth of that treaty by first ascertaining the significance of the term " denial of justice" found therein (cf. 1 Am. J . Int. L. 389) ; the case of The French Company of Venezuelan Railroads (.ibid., pp. 367-452).

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TREATIES

ain relating to the controversy rendered the issues clear, and also the sense in which particular terms had been employed by the two contracting parties because of the convincing evidence thus revealed as to their mutual design. The reason why even some of the outstanding judicial minds in America entertained the same belief as the United States Government was probably the fact that they deemed it illogical to restrict the nation which built the canal, from exempting certain canal tolls in favor of its own shipping. But the fact that the canal was built by American money was neither the only nor the most significant fact involved in the problem. Consideration had to be given to the international obligations incurred by the Clayton-Bulwer as well as the Hay-Pauncefote treaties; effort had to be made to ascertain the sense in which the term " all nations . . . on terms of entire equality " was agreed upon. The standard of interpretation advocated by the United States might have been the true one. Whether it was, however, depended upon the evidence. As the controversy stood, it was the lack of evidence in support of the American contention rather than anything else that made the argument of the United States untenable. Moreover, the absence of any denial of the right of Great Britain and the United States to agree upon any special standard such as the one contended by the latter, amounted to a tacit recognition of the wide latitude of the contracting parties in adopting a standard of their own. The insistence that what that standard was depended upon what the evidence revealed rather than upon any deduction from the bare terms of the treaty as a self-contained document, served as a safeguard against any unilateral construction that did violence to the common design. The essence of the principle of interpretation, therefore, is to ascertain through all sources of evidence what is the standard agreed upon, namely, what is the sense which the

THE STANDARD

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contracting parties mutually attached to the terms of the agreement.1 1 While, in the course of ascertaining the sense in which various terms were employed, the doctrine of rebus sic stantibus may exert great influence, it ought to be borne in mind that the justification of treaty abrogation in accordance with that doctrine, forms itself a complicated topic, which need not be discussed in the space allotted to the problem of the interpretation of treaty stipulations.

C H A P T E R T H E S O U R C E S OF I.

IV EVIDENCE

INTRODUCTORY

As the standard of interpretation is scientifically ascertainable only through various sources of evidence, in the course of delving into these sources care must be taken that the freedom of the interpreter is not fettered by any of the traditional rules. Words in a treaty do not form the charter from which interpretation may not literally depart. Quite on the contrary, extrinsic evidence is an ever-necessity in the course of ascertaining the true sense which the contracting parties attached to certain terms. The natural procedure of interpretation is that after the examination of the points in controversy and the ascertaining of the genuine standard, which forms the first step of scientific interpretation, the interpreter is confronted with the second problem of seeking and analyzing evidence in order to prove and uphold the tenor of standard attributed to the provisions. The principles that govern the second step of interpretation necessarily involve an assiduous survey of all facts and circumstances, of whatever sheds light on the question both within and without the instrument itself. Simple though the mode may appear, it is essentially a challenge to many a judicial utterance based on a dogmatic and superfluous observation of literal terms in the document or an arbitrary application of artificial canons. The late Professor John Westlake has pertinently remarked that the important point in interpretation is to get at the real intention [design] of 138

THE

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139

the parties, and that " that enquiry is not to be shackled by any rule of interpretation which may exist in a particular national jurisprudence but is not generally accepted in the civilized world," 1 and the late Thomas J. Lawrence has lamented with unquestionable justification on the " vast amount of misplaced ingenuity " 2 expended on the rules of interpretation. It is significant that the lack of constructive effort to develop a scientific system of invoking evidence on the part of writers who are keen enough to perceive the fallacies of the traditional school has, perhaps unconsciously, created a situation in which the followers of Vattel and judges trained under a special system of national jurisprudence may be most liable to yield to questionable interpretations of international agreements. 3 The procedure of treating the topic on the sources of evidence is similar to that followed in the preceding chapter. Several instructive cases representing the various phases of the problem will be examined so as to prove why the principles of seeking evidence offer the most scientific guidance to sound conclusions. T h e species of evidence in each case are set forth so as to demonstrate prominently the essentials of reasoning. A t the close of the chapter a summary is made in connection with the contrast and comparison of several other instructive cases in order to strengthen the stand deduced, and throughout the course of analysis the influence 1

Westlake, International Law (Cambridge, Eng., 1904), pt. i, p. 282.

Lawrence, The Principles of International Law, 5th ed. (Boston, 1910), p. 326. 2

a " On the whole we incline to think that the interpretation of international contracts is and ought to be less literal than that usually given in English courts of law to private contracts and acts of parliament English drafting is more minutely careful, and correspondingly English interpretation is more literal, than is common in those countries to which most of the ministers and diplomats who are responsible for the wording of international contracts belong." Westlake, op. cit., pt. i, p. 282.

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of canons of interpretation is repeatedly observed in its true light. II. T H E S. S. WIMBLEDON CASE

In the S. S. Wimbledon Case 1 the divergent modes of recognizing the sources of evidence between the majority and minority opinions are illustrative of the principles of interpretation. The essential facts as presented by the contending parties and stated by the court, may be summarized as follows: The Wimbledon, an English steamship chartered by the French firm Les Affréteurs réunis, was refused free access to the Kiel Canal by German authorities on March 21, 1921, while she was proceeding to Danzig with a cargo of 4,299 tons of munitions and artillery stores. On protest by the French Ambassador at Berlin, who claimed the legitimate right of passage by virtue of Article 380 of the Treaty of Versailles, 2 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, 1920,3 and that Article 380 of the Versailles Treaty should not be construed to be applicable in time of war. Subsequently, the Société des Affréteur réunis ordered the captain of the S". 6". Wimbledon to continue his voyage by the Danish Straits, and the vessel reached its port of destination after a delay of some eleven days. A t the same time, the controversy had not ceased to give rise to diplomatic negotiations between the conference of Ambassadors and the German Government, but these negotiations led to no accord. Finally, at the suggestion of the Berlin 1

Pub. P . C. I. J. ( A ) , No. 1.

* Article 380 provides : " T h e K i e l Canal and its approaches shall be maintained free and open to the vessels of commerce and war of all nations at peace with Germany on terms of entire equality." * See Reichs-Gesetsblatt,

1920, No. 158, p. 1469.

THE SOURCES

OF EVIDENCE

i4I

Government that the matter be placed before the jurisdiction of " the court of justice instituted expressly by Article 386 of the Treaty of Versailles for such difference of opinion," the Conference of Ambassadors on November 16, 1922, " accepted that the affair be put before the Permanent Court of International Justice at the Hague." In pursuance of these developments, on January 16, 1923, the British, French, Italian and Japanese Governments, as Principal Allied Powers designated by the Treaty of Versailles, made " application " under Article 40 of the statute, and Article 35 of the rules of the said court, asking the latter to give judgment that the refusal on the part of Germany of free access to the Kiel Canal to the Wimbledon was wrongful and that the German Government should make proper reparation for the losses incurred in consequence of her wrongful act. The question in the case related chiefly to the interpretation of Article 380 of the Treaty of Versailles, and it was this question over which the court divided by nine to three in its decision. The majority was of the opinion that according to the " plain terms of the article " the Kiel Canal was made an international waterway, open in time of peace as well as in time of war, equally to vessels of commerce and war vessels belonging to nations at peace with Germany. But in the dissenting opinion of Judges Anzilotti and Huber, Article 380 was interpreted as applicable only in time of peace, since there was no design on the part of the negotiators of the treaty, as manifested in their negotiations, which purported to deprive Germany of the right to meet her international obligations and to protect her interests in case of war or neutrality. 1 1

Professor Schiicking, in a separate and dissenting opinion, interpreted Article 380 from another angle. He believed that said article imposed a servitude, and should be given a restrictive interpretation, aiming at the protection of the vital interests of the servient state, and that the Treaty of Versailles had not affected Germany's duties as a neutral toward Russia (Pub. P. C. I. J. [A], No. 1, pp. 43-47).

THE INTERPRETATION

OF TREATIES

A comparison of the opposing opinions cannot but yield the resulting observation that two distinct methods of interpretation were employed by the judges on both sides, the majority recognizing the literal provision of Article 380 as " self-contained," and the minority emphasizing the search f o r evidence from the extrinsic sources. In view of the fact that the contrast of the different methods of approach points out the relative values of relying on internal and external evidence, a close analysis of each will be helpful in order to comprehend the principles of interpretation. In support of the literal provision of Article 380 of the Treaty of Versailles, the applicants resorted to the assistance of other articles in the same treaty, such as Articles 3 8 1 , 382, 3 8 3 , 3 8 5 , 1 as evidence to j u s t i f y their demand. Article 3 8 1 provided that " the nationals, property and vessels of all Powers, shall, in respect of charges, facilities, and in all other respects, be treated on a footing of perfect equality in the use of the canal . . . " ; and that no obstacle should be made to restrict " the movement of persons or vessels other than those arising out of police, customs, sanitary, emigration or immigration regulations, and those relating to the import and export of prohibited goods, and that such regulations must be reasonable and uniform and must not unnecessarily impede traffic." It was alleged by the applicants that since the article provided f o r certain restrictions 1

A r t i c l e 3 8 2 prohibits the l e v y i n g of charges upon vessels having access

to the canal or its approaches other than those intended to cover the equitable cost of maintaining in a navigable condition, or of

improving,

the canal or its approaches, or to meet expenses incurred in the interests of navigation; A r t i c l e 3 8 3 contemplates the placing of goods in transit under seal or in the custody of customs a g e n t s ; and A r t i c l e 3 8 5 imposes upon G e r m a n y an obligation to take all proper measures to remove any obstacle or danger to navigation, and to ensure the maintenance of good conditions of navigation, at the same time forbidding Germany to undertake any w o r k s of

such a nature as to impede navigation on the canal or

approaches.

its

THE

SOURCES

OF

EVIDENCE

*43

which might be placed by the German authorities upon free movement in the canal, and since none of these restrictions enumerated could be applied to the Wimbledon, it should be taken as nothing less than a confirmation of the literal provision of Article 380 that the canal should be maintained free and open to the vessels of commerce and of war of all nations at peace with Germany. The court declared that.1 The terms of articles 380 are categorical and give rise to no doubt. It follows that the canal has ceased to be an internal and national navigable waterway, the use of which by the vessels of states other than the riparian state is left entirely to the discretion of that state, and that it has become an international waterway intended to provide under treaty guarantee easier access to the Baltic for the benefit of all nations of the world. Under its new régime, the Kiel Canal must be open, on a footing of equality, to all vessels without making any distinction between war vessels and vessels of commerce, but on one express condition, namely, that these vessels must belong to nations at peace with Germany. Thus the court was of the opinion that the only condition of restriction on free passage through the canal was that the vessels should belong to nations at peace with Germany, and " if the conditions of access to the canal were also to be modified in the event of a conflict between the Powers remaining at peace with the German Empire, the Treaty would not have failed to say so." 2 Pursuing a course of reasoning along these lines, the court proclaimed that the provisions regarding the Kiel Canal in the Treaty of Versailles were " self-contained ". 8 It is worthy of note that in reaching its conclusion the court did not deem it necessary to go beyond the literal pro1 Pub. P. C. I. J. [A], No. I, p. 22. J

Ibid., p. 23.

3

Ibid., p. 24.

THE

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visions of the treaty. Moreover, when the German argument for a " restrictive interpretation " based on the plea of international servitude was advanced, 1 the court dismissed the question by saying that although, in case of doubt, the article might call for a " restrictive interpretation," it felt obliged to stop at the point where such an interpretation " would be contrary to the plain terms of the article and would destroy what has been clearly granted." 2 Consequently, the plain literal terms of Article 380 were taken to apply in time of war as well as in time of peace, and the argument that the general grant of a right of passage to vessels of all nationalities through the Kiel Canal could not deprive Germany of the exercise of her rights as a neutral power in time of war was deemed to be inconsistent with the "self-contained" provision. The next step taken by the court in the course of interpretation was the attempt to draw an analogy between the 1 The weakness of the argument advanced by Professor Schiicking in respect to international servitude can hardly be gainsaid. In setting forth his plea, he had evidently in his mind one of the rules of construction (see Vattel, Law of Nations [Philadelphia, 1861], bk. ii, ch. xvii, sec. 308: " W e should, when there is question of odious things, interpret the terms in the most limited sense; we may even to a certain degree adopt a figurative meaning in order to avert the oppressive consequences of the proper and literal sense, or any thing of an odious nature, which it would involve.") through which he hoped the court might entertain a "restrictive interpretation" in favor of Germany. Thus the dismissal of his contention by the court shows, perhaps in an indirect way, the danger of relying on rules of construction, because such a rule may easily be overridden by another rule. In the case under consideration, it seems clear that the court overrode the rule which Professor Schiicking invoked by the rule of " plain meaning " or the so-called rule of " literal interpretation ". See Hudson, " The Second Y e a r of the Permanent Court of International Justice,". 18 Am. J. Int. L . 13: " L i k e many cases of interpretation, this case {The Wimbledon Case) represents a choice by the court of one of two possible constructions to be put upon a text. The reasons for selecting the construction chosen are not of compelling force, and there were probably certain pragmatic tests in the minds of the judges which were not brought out into the open."

»Pub. P. C. I. J. ( A ) , No. 1, p. 25.

THE SOURCES

OF

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145

provision of Article 380 on the one hand, and the provisions of the Convention of Constantinople of 1888, the HayPauncefote Treaty of 1 9 0 1 and the treaty between the United States and the Republic of Panama of 1903, on the other. According to the Convention of Constantinople, the Suez Maritime Canal should " always be free and open, in time of war as in time of peace, to every vessel of commerce or of war without distinction of flag," including even the vessels of countries at war with the territorial sovereign, namely, Turkey. The court contended that under the régime thus established " belligerent men-of-war and ships carrying contraband have been permitted in many different circumstances to pass freely through the Canal; and such passage has never been regarded by anyone as violating the neutrality of the Ottoman Empire." 1 The challenge to this point, however, remains that the provision in respect to the Suez Canal is essentially different from that concerning the Kiel Canal. The former specifically mentions " in time of war as in time of peace " and the latter says nothing to that effect. As emphasized by the minority opinion, the very wording in the Convention of Constantinople might reasonably be taken to disprove what the court sought to establish ; and the argument might be advanced that if Article 380 were designed to be applicable in time of war, why should not the phrase " in time of war as in time of peace " have been inserted in it as in the provision governing the Suez Canal ? 2 A s regards the case of the Panama Canal, the court reviewed with great care the provisions of the Hay-Pauncefote Treaty of 1 9 0 1 , and the treaty between the United States and the Republic of Panama of 1903, in order to demonstrate that the use of the great international highways whether by belligerent men-of-war or by belligerent or neu1

Pub. P. C. I. J. (A), No. i, p. 26. * Cf. ibid., pp. 36-37.

!

4

6

THE INTERPRETATION

OF

TREATIES

tral merchant ships carrying contraband had not been taken as incompatible with the neutrality of the riparian sovereign. Possibly the analogy made should not be taken as surely conclusive, because of, among several other considerations, the difference between the sovereign rights enjoyed by Germany in the case of the Kiel Canal, and those enjoyed by the Republic of Panama in the case of the Panama Canal. 1 A t all events, the question remained to be answered whether the framers of the Versailles Treaty ever had the cases of Suez 1 In connection with the negotiations of the Hay-Pauncefote Treaty over the opening of the ship canal to vessels of war and commerce, it is well worthy to observe that Mr. Hay, Secretary of State, in a personal communication to Mr. Cullom, Chairman of the Senate Committee on Foreign Relations, December 12, 1901, incidentally adverted to the interpretation of the phrase " in time of w a r as in time of peace ". According to the discussions prior to the conclusion of the said treaty, Great Britain for a time objected most seriously to the specific amendment of the American Senate to the draft treaty of February 5, 1900 that the neutrality of the canal should not " apply to measures which the United States may find it necessary to take for securing by its own forces the defense of the United States and the maintenance of public order," but Mr. H a y entertained the belief that it was not impossible to avoid the conflict by omitting the phrase " in time of war as in time of peace " so as to give the United States a right to close the Canal as a war measure. In his own words, it was stated ("Diplomatic History of the Panama Canal," S. Doc., No. 474, 63rd Cong., 2nd Sess., 53, 55-56) :

" N o longer insisting upon the language of the amendment, which had in terms reserved to the United States express permission to disregard the rules of neutrality prescribed when necessary to secure its own defense—which the Senate had apparently deemed necessary because of the provision in rule 1 that the canal should be free and open ' in time of war as in time of peace ' to the vessels of all nations—it was considered that the omission of the words ' in time of war as in time of peace ' would dispense with the necessity of the amendment referred to, and that war between the contracting parties or between the United States and any other power would have the ordinary effect of war upon treaties and would remit both parties to their original and natural right of self-defense and give to the United States the clear right to close the canal against the other belligerent and to protect it by whatever means might be necessary."

THE SOURCES OF

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14 7

and Panama in their minds when they undertook to draw up Article 380 of the Treaty of Versailles. 1 Accordingly, the interpretation adopted by the court seemed to follow, in a general way, a conservative method that words are definite and evidence may not be sought if the meaning is plain. The dissenting opinion of M M . Anzilotti and Huber, however, pursued such a different course of interpretation, that its contrast and comparison with the opinion of the court are extremely instructive in the study of the principles of seeking evidence. 2 In fact, it was chiefly due to their advocacy of a different method in interpreting treaties that the minority judges wrote their opinion as they did. 3 T o them the question in the case was not whether a neutral duty should take precedence over a contractual obligation, but rather " D o the clauses of the Treaty of Versailles relating to the Kiel Canal also apply in the event of Germany's neutrality, or do they only contemplate normal circumstances, that is to say, a state of peace, without affecting the rights and duties of neutrality ?" 4 Bearing this question in mind they outlined their arguments against the procedure of interpretation followed by the court. 1

Cf. the stand taken by the court (sitting as a Chamber of Summary Procedure composed of Judges Loder, Weiss and Huber) in respect to the interpretation of paragraph 4 of the annex following article 179 of the Treaty of Neuilly, where it was declared that according to the general principles of interpretation, " an obligation imposed on one contracting party cannot be based on the fact that it is mentioned " in provisions of another treaty "dealing with a different matter." (Pub. P. C. I. J . [ A ] ) , No. 3, p. 9.) 2

f t is interesting to observe that in giving out his dissenting opinion M. Anzilotti was opposed to the contentions of Italy, his own country. 2

Pub. P. C. I. J . ( A ) , No. 1, p. 3 5 : " A s the essential difference between our standpoint and that of the majority concerns a point which affects the interpretation of international conventions in general, we feel it to be our duty to avail ourselves of the right conferred upon us by the Statute to deliver a separate opinion." 4

Ibid., p. 35.

148

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First of all, as has been noted elsewhere, 1 they appeared to condemn the interpretation based on literal provisions irrespective of external circumstances. While conceding that when the wording of a treaty was clear its literal meaning should stand, they pointed out with emphasis that words would have no value except in so far as they expressed an idea, and that " the purely grammatical interpretation of every contract, and more especially of international treaties," should stop at the point where the literal interpretation would g o " beyond the intention of the parties " or lead to " contradictory or impossible consequences." 2 In reply to the argument by analogy as set forth in the opinion of the court, the dissenting judges contended that engagements limiting freedom of action of states in respect to wars between third countries must be stated expressly and could never be assumed, and that the validity of this view was clearly proved by a clause inserted in the Barcelona conventions (dealing with the freedom of communications enunciated in Article 23 of the Covenant of the League of Nations), which was as follows: This Statute does not prescribe the rights and duties of belligerents and neutrals in time of war. The Statute shall, however, continue in force in time of war, so far as such rights and duties permit. Moreover, the justification of the stand that Article 380 should not be applied in time of war was re-enforced by the comparison between Articles 380 to 386 and Section II of 1

See supra, pp. 47-48.

Pub. P. C. I. J. ( A ) , No. 1, p. 36: " T h o u g h it is true that when the wording of a treaty is clear its literal meaning must be accepted as it stands, without limitation or extension, it is equally true that the words have no value except in so f a r 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 or which, in the circumstances, must be regarded as going beyond the intention of the parties." 2

THE SOURCES

OF

EVIDENCE

the same part of the treaty, concerning internal waterways of Germany, which vision expressly dealing with a state of In the face of these considerations, the declared t h a t : 1

149

navigation on the contained no prowar or neutrality. dissenting judges

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 take the necessary measures to ensure respect for her police, customs and sanitary regulations etc. that is to say, to protect relatively unimportant interests was formally recognized. While the foregoing statement marked an inquiry into a logical system of ascertaining the actual design of the parties sought to be conveyed through Article 380, by f a r the most noteworthy point regarding the principles of interpretation was the effort on the part of the dissenting judges to belittle the strictly literal meaning and to encourage the invocation of external considerations. Thus it was well brought out that if the terms in Article 380 were taken strictly in their literal sense, impossible consequences would naturally follow. to wit, Germany, should she be a belligerent, would have to assume the obligation to grant the free access to the Kiel Canal to neutral vessels—an obligation which would be inconceivable without a corresponding obligation on the part of Germany's enemy. Again, if Germany, being a neutral, were forced to observe only the letter of Article 1 Pub. P. C. I. J. (A), No. i, p. 38.

THE INTERPRETATION

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380, she would have to allow the men-of-war of t w o foreign belligerent states, being at peace with her, the free access to the Canal, with no right to interfere, even if perhaps the belligerent vessels should open fire at each other in the middle of the stream. A s to the source of evidence invoked by the dissenting judges, it was chiefly extrinsic in character, and it was best illustrated by the following utterance: 1 The legal status of the Kiel Canal, therefore, resembles that of the internal navigable waterways 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. T h e fact that due consideration was given to the correspondence exchanged between the contracting parties characterizes once more a procedure of interpreting international agreements which is essentially different from what was pursued by the court. Although the term " intention " was not employed with scientific accuracy by the minority judges 2 it should not be doubted that the dissenting judges followed a method of ascertaining a standard by virtue of all available sources of evidence, which is essentially in harmony with the fundamental principles of scientific interpretation. It is, therefore, important to note that in the foregoing case, the first one ever decided by the Permanent Court of International Justice, the t w o distinctive modes of interpretation 1 a

Pub. P. C. I. J. ( A ) , No. 1, p. 40. See supra, p. 148.

THE SOURCES

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were so well exhibited: one emphasizing the document itself, and the other laying stress upon external evidence; one respecting " plain terms," and the other looking outside for the sense which the negotiators sought to convey through the treaty provision.

That M . Anzilotti sustained an opinion

hostile to the interests of his o w n country is significant not so much because it indicates a sign of impartiality as because it establishes a challenge to the traditional formalism that a clause m a y be " self-contained " and words should be taken only at their face value. It might be inaccurate to conclude, however, that the court did not heed extrinsic evidence. happened

that

the

correspondence

It may have so

which

the

minority

judges referred to and the external circumstances which the German agent undertook to set forth, 2 were not, in the 1 See the attempt of the German agent to introduce external events in support of his contention ( P u b . P . C. I. J. [ C ] , N o . 3, vol. i, pp. 311-313) : " O n July 5th [1920] t w o Communist Deputies, D r . L e v y and M m e . Zetkin sent a note to the German Government announcing an interpellation to the f o l l o w i n g e f f e c t :

' It is stated in the press that the Allies, in v i e w of the collapse of the Polish A r m y , intend to ask Germany to permit the transit of troops and w a r material across her territory, f o r the support of the Poles. ' Is the German Government in a position now to declare that they will maintain strict neutrality in the conflict between Poland and Russia and not permit such transit across German territory or any other action to favour Poland?' " OR July 23rd, the Reichstag being then adjourned, a written reply was sent to the effect that the attitude of the German Government had been stated in the public declaration of neutrality of July 2 1 s t . . . . " Realizing that Germany, disarmed as she w a s by the T r e a t y of Versailles, was no longer p o w e r f u l enough to prevent these Russians f r o m rejoining their army, the great Allied P o w e r s , viz., France, England and Italy, sent a note to Germany on the 7th September [1920], asking her to take all the necessary steps in order to prevent these Russian soldiers, and those that might still be taken prisoners, f r o m rejoining their a r m y and taking part afresh in hostilities. " O n the 16th September a new note was sent to the German G o v e r n ment w h i c h constituted a flagrant contradiction of the first note. T h i s

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judgment of the court, sufficient to overcome the influence of the literal signification of the controversial provision. Indeed, this belief would appear to be fortified by the lack of strength of the German arguments as presented both by the German counsel 1 and the German judge. 2 A t all events, f r o m the examination of the two different methods of interpretation employed in the case, one is inclined to feel that to view a document as " self-contained " produces a tendency to discourage under some circumstances reliance upon extrinsic evidence. 8 III. THE CAYUGA INDIANS CASE

In the interesting case of Cayuga Indians Claims * decided on January 22, 1926, by the American and British Claims Arbitration Tribunal established in pursuance of the special agreement signed at Washington, August 18, 1910, 5 the reasoning of the tribunal in respect to a certain rule of construction, illustrates well the typical application of canons second note, which I am not qualified to criticise, prescribed to the German Government to dissolve immediately all the local guards and the frontiers guards, that is to say, to undo the military organisation that had been created in consequence of the proclamation of the President of Eastern Prussia." ' S e e speech and rejoinder by M. Schiffer (ibid., pp. 298-363, 396-407). It is interesting to observe that although the German agent declared at the outset that he was not " appealing to any sentimentality," he could not help concluding his speech with a rather sentimental response, viz., " It rests with the Court to set up Justice on a ' basis as firm as a rock of bronze', to use words of a German Prince." (Ibid., p. 363.) ' S e e dissenting opinion by Professor Schiicking (Pub. P. C. I. J. [ A ] , No. I, pp. 43-47.) See also supra, p. 141, n. I ; p. 144, n. 1. 3

C}. infra, pp. 160-161.

' A m e r i c a n and British Claims Arbitration Tribunal, Claim Aivard of Cayuga Indians Case (Washington, D. C., 1926).

No.

6,

* Brit. & For. St. Pap., vol. 74, Treaty Series, No. 11 (1912) ; 5 A m . J. Int. L. Supp., 257-267.

THE SOURCES

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which might be taken to preclude extrinsic evidence. outstanding facts involved in the claims are as follows:

153 The

New Y o r k State had made treaties with the Cayuga Indians in 1789, 1790 and 1795, and promised them, in return for their cession of land, the sum, first of five hundred, and then eighteen hundred dollars per annum. During the W a r of 1 8 1 2 between Great Britain and the United States, the Cayuga Indians were divided, and a large number of them went to live in Canada. From that time on those living in Canada ceased to receive any of the payments, although they protested, and urged their claims both with the State of New York and with the British Government. While the Cayuga Indians were known as the Cayuga Nation according to New Y o r k law, they assumed no international status by virtue of that name, and legally they could not make any claim save under the guardianship of a sovereign nation. In view of the fact that Great Britain had always dealt with the Canadian Cayugas as individuals, she maintained that she was entitled to bring the claim on their behalf to the tribunal. Although the treaty of 1795 was a contract of the State of New York, the liability of the United States was grounded on Article I X of the Treaty of Ghent, which read as follows: 1 The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, 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. It is over the interpretation of this article that the tribunal 'American and British Claims Arbitration Tribunal, op. cit., pp. 18-19.

THE INTERPRETATION

OF

TREATIES

exhibited its readiness to adopt rules of construction and its reluctance in recognizing extrinsic evidence. I n regard to the provision that the U n i t e d States

of

A m e r i c a assumed the obligation to restore to the Indian tribes or nations " all the possessions, rights, and privileges which they m a y have enjoyed or been entitled to in one thousand eight hundred and eleven . . .

the agent of

the United States went into the detailed history of the negotiations leading to Article I X , and contended thereby that the said article, f o r certain reasons, was not designed f o r actual application, but as a " nominal " provision.

While

the tribunal regarded the argument as " elaborate and in genious," it r e f u s e d to agree with such an interpretation, and fortified its stand by virtue of the canon of interpretation that a clause should be so interpreted as to give it a meaning rather than so as to deprive it of meaning.

" We

are not asked," so the tribunal declared, " to choose between possible meanings.

W e are asked to reject the apparent

meaning and hold that the provision has no meaning. we cannot d o . "

1

This

T a k i n g such a rule of construction as

an unquestionable premise, the tribunal held that Article I X should be interpreted as a promise to restore the Canadian C a y u g a s to the status which they possessed prior to the outbreak of the W a r of 1 8 1 2 , and to restore the situation in which they received their share of the money covenanted to be paid to the original undivided nation; and that it w a s " quite inadmissible under every-day rules of interpretation " to consider the promise as having no meaning and merely as " a provision inserted to save the face of the negotiators." T h e challenge to this method of

interpretation is ob-

viously that the tribunal appeared to believe that when the literal provision was " apparent " its " meaning " should be taken as final, and that even if there w a s extrinsic evidence 1

American and British Gaims Arbitration Tribunal, op. cit., p. 19.

THE SOURCES

OF

EVIDENCE

155

to contravene the " plain " terms, such evidence should give way to a canon of interpretation. This, however, seems to assume a procedure with which it is difficult to harmonize the principles of scientific interpretation. As has been observed elsewhere, the literal appearance or plain terminology frequently may not indicate the genuine sense which the contracting parties have attached to the provision, and a suppression of external proof in order to give the provision a plain or possible meaning is by no means a scientific mode of solving the problem. It might so happen that the provision of Article I X had been designed to be " nominal " or " without a meaning," in order " to save the face of the negotiators." In that event the mutual standard adopted by the negotiators would assume a special form, which was just opposite to the apparent meaning of the provision, and an arbitrary application of a rule of construction would amount to a restriction of the freedom enjoyed by the contracting states in choosing their standard.1 Thus it goes without saying that the guidance for ascertaining the sense in which the contracting parties employed the terms and phraseologies must not be canons, but the product of the effort of searching for and analyzing evidence. The decision of the Cayuga Indians Case may be entirely correct and equitable, but it gives the appearance of ignoring evidence which may have been of decisive importance. Whether or not the " elaborate and ingenious argument" of the United States " based upon the history of the negotiations leading to Article I X " actually yielded sufficient evidence to justify the latter article to be " nominal " is of less significance than the fact that the tribunal appeared to pursue a method of interpretation based on the application of a seemingly convenient rule of construction. In order to question further the reasonableness of the rule 1

See supra, pp. 52-58.

156

THE

INTERPRETATION

OF

TREATIES

that " a clause must be so interpreted as to give it a meaning rather than so as to deprive it of meaning," it is singularly instructive to observe the judicial attitude taken in the North Atlantic Coast Fisheries Arbitration, where the Permanent Court of Arbitration at the Hague declared it to be " a principle of interpretation that words in a document ought not to be considered as being without any meaning if there is not specific evidence to that purpose." 1 One is inclined to feel that in the Cayuga Indians Case the value of rules of construction were perhaps inadvertently overestimated, and that in the North Atlantic Coast Fisheries Arbitration they were given a sounder appraisal. Nevertheless, it might have been that the tribunal in the Cayuga Indians Case, after having examined the extrinsic evidence offered by the American counsel, found it insufficient to sustain the American contention, 2 and that such circumstances might have encouraged the tribunal to take the stand that it did. IV. T H E CASE OF T H E NORTH ATLANTIC COAST FISHERIES ARBITRATION

W i t h respect to the principles of scientific interpretation, the case of the North Atlantic Coast Fisheries Arbitration awarded by the Permanent Court of Arbitration at the Hague 3 is peculiarly instructive, inasmuch as the tribunal 1 " Proceedings in the North Atlantic Coast Fisheries Arbitration," S. Doc., No. 870, vol. i, p. 96, 61 st Cong., 3rd Sess. Cited in Hyde, op. cit., vol. ii, p. 68, n. 1. 1 See the extracts f r o m the argument of the American agent indicating contentions advanced by each party, the brief filed by the American A g e n t with respect to the interpretation of Article V of the Convention of February 8, 1853, the extract of the argument of the American agent with respect to the subject of "denial of j u s t i c e " , and the discussion of the tribunal's opinion. (Nielsen, Report of American and British Claims Arbitration [Washington, D. C., 1926], pp. 205, 221, 249, 267.)

* The North Atlantic Coast Fisheries Arbitration, having for its purpose to settle the century-long fisheries dispute between Great Britain and the United States, is probably one of the most remarkable international

THE SOURCES

OF

EVIDENCE

157

gave special consideration to extrinsic evidence, as well as arbitrations to which the United States has been a party. In order to understand clearly the questions involved in the controversy, several historical facts may be noted. By the treaty of peace of 1783 following the American Revolution Great Britain recognized the rights of the inhabitants of the United States to take, dry and cure fish on the shores and coastal waters within the jurisdiction of Great Britain. At the close of the War of 1812, however, the British negotiators of the treaty of peace assumed an attitude that in so far as the fisheries provisions of the treaty of 1783 related to the inshore or coast fisheries, they were regarded by Great Britain as abrogated by that war. But the negotiators of the United States contended that since the fisheries provisions of the treaty of 1783 only secured to the United States the continued enjoyment of preexisting rights upon the partition of the British North America at the close of the revolution said provisions were not subject to abrogation by war. Thus the difference became a topic of constant diplomatic correspondence and negotiations, which eventually led to the new fisheries treaty of October 20, 1818. But unfortunately the fisheries provisions of this new agreement contained provisions open to divergent interpretations. Although in the Reciprocity Treaty of 1854 and the Treaty of Washington of 1871 efforts were made to settle the differences by providing for new and more extensive fisheries privileges for American fishermen in the territorial waters of Canada and Newfoundland in exchange for trade and other concessions acceded by the United States, the arrangements did not prove to be satisfactory. As time went on, the so-called Bayard-Chamberlain Treaty of 1888, Blaine-Bond Treaty of 1892, and the Hay-Bond Treaty of 1902 were negotiated in order to adjust the differences, but they were not ratified either because of the rejection by the United States Senate, or because of the opposition of Canada. Inasmuch as the ensuing diplomatic discussions only revealed the wide divergence of views between the two governments as regards the true sense in which the provisions of the treaty of 1818 were employed, it was finally recognized that recourse should be had to arbitration. Consequently, pursuant to the general arbitration agreement of April 4, 1908 between the United States and Great Britain, which meanwhile had been concluded, a special protocol of arbitration was made on January 27, 1909 (1 U. S. Treaties, 835). By virtue of this agreement the dispute was referred to a tribunal of arbitration constituted in accordance with the Hague convention of October 18, 1907 for the pacific settlement of international disputes. The tribunal so formed was composed of five members, namely, Dr. H. Lammasch (Austria), President, Jonkheer A. F. de Savornin Lohman (Netherlands), Judge George Gray (United States), Sir Charles Fitzpatrick (Canada) and Dr. Luis M. Drago (Argentina). See Proceedings, op. cit., passim; Hyde, op. cit., vol. i, pp. 264-266; vol. ii, pp. 66-68.

THE INTERPRETATION

OF

TREATIES

took pains to ascertain the standard of interpretation, not from subsequent manifestations, but from the original circumstances under which the negotiators had framed the instrument. The controversial points which the tribunal was confronted with were chiefly concerning the interpretation of Article I of the convention, signed at London, October 20, 1818, between Great Britain and the United States,1 and these points took the form of seven questions. Under Ques1 A r t i c l e I of the convention read as f o l l o w s : " W h e r e a s differences have arisen respecting the liberty claimed by the United States f o r the inhabitants thereof, to take, dry and cure fish on certain coasts, bays, harbours, and creeks of H i s Britannic M a j e s t y ' s dominions in America, it is agreed between the H i g h Contracting Parties, that the inhabitants of the said United States shall have forever, in common with the subjects of H i s Britannic M a j e s t y , the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends f r o m Cape R a y to the Rameau Islands, on the western and northern coast of Newfoundland, f r o m the said Cape R a y to the Quirpon Islands, on the shores of the M a g d a l e n Islands, and also on the coasts, bays, harbors, and creeks f r o m Mount Joly on the southern coast of Labrador, to and through the Straits of Belleisle, and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson B a y C o m p a n y ; and that the American fishermen shall also have liberty forever, to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland here above described and of the coast of L a b r a d o r ; but so soon as the same, or any portion thereof, shall be settled, it shall not be l a w f u l f o r the said fishermen to d r y or cure fish at such portion so settled, without previous agreement f o r such purpose with the inhabitants, proprietors, or possessors of the ground. A n d 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 harbours of H i s Britannic M a j e s t y ' s dominions in A m e r i c a not included within the above-mentioned limits; provided, however, that the American fishermen shall be admitted to enter such bays or harbours f o r the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and f o r no other purpose whatever. B u t they shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner w h a t e v e r abusing the privileges hereby reserved to them." Proceedings, op. cit., vol. i, pp. 65-66; 1 U . S. Treaties, 631-632.

THE SOURCES

OF

EVIDENCE

159

tion V, the tribunal was asked to decide: " From where must be measured the three marine miles of any of the coasts, bays, creeks, or harbours " on or within which the United States had agreed to " renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish ? " It is in answer to this perplexing Question that the court has pronounced some judicial utterances which seem to be most pertinent to the principles of scientific interpretation. In undertaking the task of interpretation as to whether the renunciatory clause applied to all bays in general (which was the British contention) or applied only to bays of a certain class or condition (which was the contention of the United States), the tribunal at the outset pursued the logical procedure, and inquired as to what was the sense in which the negotiators employed the term " bays " and where was its proof or evidence, if any, upholding the contention that that term had been used in a particular sense. Thus with due consideration of the prevailing circumstances at the time of negotiation, the tribunal declared that the term in question should be interpreted in a general sense as applying to every bay on the coast under consideration which " might be reasonably supposed to have been considered as a bay by the negotiators of the treaty under the general conditions then prevailing, unless the United States can adduce satisfactory proof that any restrictions or qualifications of the general use of the term were or should have been present to their minds." 1 In the course of defending its claim, the United States offered several specific arguments based on certain interpretations of such terms as " liberty to fish," " bays of His Britannic Majesty's Dominions," etc. One of the most in1

Proceedings, op. cit., vol i, p. 92.

!6O

THE INTERPRETATION

OF

TREATIES

teresting contentions so advanced was that the renunciatory clause should apply only to bays six miles or less in width " inter fauces terrae " as they were only " territorial bays " on account of the three-mile rule which, being a principle of international law applicable to coastal waters, should be strictly and systematically applied to bays. In rejecting this interpretation grounded on the application of the three-mile rule as a test of measurement, the tribunal declared that " it has not been shown by the documents and correspondence in evidence here that the application of the three-mile rule to bays was present to the minds of the negotiators in 1818, and they could not reasonably have been expected either to presume it or to provide against its presumption," 1 and moreover, from the information before the court " it is evident that the three-mile rule is not applied to bays strictly or systematically either by the United States or by any other Power." 2 In this way it is clearly shown that the tribunal exercised great care in ascertaining the sense of the term " bays " as employed by the negotiators of the treaty, and manifested a readiness to consider extrinsic evidence. But it was further contended by the United States that the words " coasts, bays, creeks or harbours " as employed in Article I of the Treaty of 1818 were used only to designate different parts of the coast, and were " intended to express and be equivalent to the word ' coast'," whereby the three-mile rule would be employed as a measure along the sinuosities of the coast and the renunciatory clause would only apply to waters of bays within three miles. In answer to this argument, however, the tribunal declared that " words in a document ought not to be considered as being without any meaning, if there is not specific evidence to that 1 Proceedings, op. cit., vol. i, pp. 94-95. ii, pp. 67-68.

2

Ibid., vol. i, p. 95.

Cited in Hyde, op. cit., vol.

THE

SOURCES

OF

161

EVIDENCE

purpose," and that the interpretation of the United States would lead to the consequence, practically, of leaving the words " bays, creeks and harbours " out of the treaty, so as to read " within three miles of any of the coasts," including therein the coasts of the bays and harbors. Furthermore, it was also pointed out that the practical distinction for the purpose of fishing between coasts and bays and the peculiar conditions relating to the latter were shown from the correspondence and the documents in evidence, especially the treaty of 1783, to have been in all probability present to the minds of the negotiators of the treaty of 1818. 1 For these and other reasons the tribunal declared that In case of bays, the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay. A t all other places the three marine miles are to be measured following the sinuosities of the coast.2 Thus it is significant to observe that in rejecting the contention of restricting the term " bays " by the application of the three-mile rule, the tribunal again gave careful consid1

Proceedings, op. cit.,

p. 96.

T h e tribunal also declared

that

" The

negotiators of the treaty of 1818 did probably not trouble themselves w i t h subtle

theories

concerning

the

notion

of

' bays ' ; they

most

probably

thought that e v e r y b o d y would k n o w w h a t w a s a bay.

I n this popular

sense the term must be interpreted in the treaty."

p. 97.

'Ibid.,

pp. 97-98.

Ibid.,

A l t h o u g h this answer to Question V

w a s correct in

principle, the tribunal considered it as not entirely s a t i s f a c t o r y as to its applicability and leaving room for doubts and differences in practice. sequently, in order to remove the danger of rules and methods of bays were

procedure f o r the determination of

recommended.

S e e Anderson,

Con-

f u t u r e differences, certain

" The

Final

the limit

O u t c o m e of

of the

F i s h i n g A r b i t r a t i o n , " 7 A m . J. I n t L . 1 ; Lansing, " T h e N o r t h A t l a n t i c Fisheries A r b i t r a t i o n , " 5 A m . J. Int. L . 1, 19-25 ; B a l c h , " La décision la cour permanente

d'arbitrage,"

op. cit., vol. i, p. 265, n. 1.

13 Rev.

Droit

de

Int., 2nd Series, S ; H y d e ,

!62

THE INTERPRETATION

OF

TREATIES

eration to external circumstances ascertained

from

prior

negotiations, and w a s not without willingness t o accept the interpretation advanced b y the U n i t e d States if there were " specific evidence " to uphold that interpretation. w o r d s , t h r o u g h o u t the whole course of

I n other

a d j u d i c a t i n g the

controversial point the court neither allowed any rules of construction t o interfere with a free appraisal of evidence, nor took cognizance of later usages of the nineteenth cent u r y relating to the territorial sovereignty over bays as competent aid in ascertaining the sense o f terms used by the negotiators in 1 8 1 8 . 1

Its method of tackling the problem, there-

fore, w a s well in accordance w i t h the scientific principles of interpretation. V. T H E M A N I C A A R B I T R A T I O N C A S E

In the Monica and

Portugal

Arbitration

Case

2

the significance of

between Great B r i t a i n invoking

contemporary

negotiations as evidence was duly emphasized not only by the arbitrator, but also by the Acte

de Compromis,

which

w a s signed in L o n d o n on the 7th of January, 1895.

The

bone of contention between the t w o countries w a s concerni n g questions relative to the delimitation of their spheres of influence in E a s t A f r i c a , arising out of a treaty of June 1 1 , 1 8 9 1 , the second article of which contained the demarcation of the " boundary to the south of the Z a m b e z i . "

Having

failed t o come t o an agreement with regard t o the sense of some phrases in the said article, the t w o governments submitted the case to the minister of the K i n g d o m of Italy f o r arbitration.

T h e " boundary to the south of the Z a m -

bezi " w a s divided into three sections, n a m e l y : 1. F r o m the Z a m b e z i as f a r as 18 0 30' south latitude. 2. F r o m 18° 30' south latitude to a point w h e r e the rivers S a b i and L u n d e , or Lunte, meet. 1

Proceedings, op. cit., p. 95.

1

5 Moore A r b . 4985-5015.

THE SOURCES

OF

EVIDENCE

163

3. From this point to the river Maputo. A s it was deemed unnecessary to deal with the lines defined in the first and third sections, only the second section was submitted to arbitration, which read as follows : 1 Thence [i. e., from the intersection of the thirty-third degree of longitude east of Greenwich by the parallel of latitude 180 30' south] it follows the upper part of the eastern slope of the Manica plateau southwards to the center of the main channel of the Sabi, follows that channel to its confluence with the Lunte, whence it strikes direct to the northeastern point of the frontier of the South African Republic, and follows the eastern frontier of the republic and the frontier of Swaziland to the river Maputo. It is understood in tracing the frontier along the slope of the plateau no territory west of longitude 32° 30' east of Greenwich shall be comprised in the Portuguese sphere, and no territory east of longitude 330 east of Greenwich shall be comprised in the British sphere. The line shall, however, if necessary, be deflected so as to leave Mutassa in the British sphere and MassiKessi in the Portuguese sphere. In accordance with such stipulations the commissioners of the two governments endeavored to ascertain the boundary line in 1892, and as the differences which had arisen could not be settled by diplomacy, the parties agreed, in the words of the compromis, " to request the arbitrator to take into consideration the documents, the reports of the negotiations, and the results of the technical labors, to weigh the arguments of the two governments, based upon their respective opinions, and to decide on the line which shall separate the Portuguese sphere of influence from that of Great Britain from the parallel 18 0 30' to the point of confluence of the Lunte and Sabi." 2 1

S Moore Arb. 4986-4987.

• Ibid., 4987.

164

THE INTERPRETATION

OF

TREATIES

The Portuguese Government argued that from 20° parallel south, till about latitude 20° 30', the topography of the ground became so irregular that it was difficult to apply the provisions of Article II, the slope of the plateau being so cut by the irregular river system that there was no clear trace of the edge of the eastern slope leading southwards to the Save (Sabi). Consequently, this was a case not forseen by the treaty, which took for granted that the plateau was prolonged southwards to the Save. Since Article II ceased to be applicable in this connection, proceeded the Portuguese commissioner, it should be supplemented " by having recourse to the general principles of diplomatic interpretation, according to which when in a delimitation convention it is stated that a line has to go from one point to another, without specifying the course, it must proceed there straight by the shortest route." 1 Great Britain, however, contended that the agreement having been entered into between Major Leverson, the British commissioner, and Captain d'Andradi, the delegate of the Portuguese commissioner, which gave birth to the so-called " Leverson-d'Andradi line," should prevail in spite of Portugal's objection (based on the fact that the covenant signed by Captain d'Andradi could not be obligatory and definite unless the Portuguese commissioner gave his approval, which he did not do before the arbitration), inasmuch as the said agreement had been discussed and accepted in consequence of mutual concessions by technical experts " who had acquired a personal knowledge of the localities, and were very competent to form an opinion of their topographical characteristics." The arbitrator, in support of the British view, went to the source of the evidence, and ascertained the design of the parties during the course of contemporary negotiations. It was pointed out that the idea of compro1

s Moore Arb. 5008-5009

THE SOURCES

OF

EVIDENCE

mise was expressed even by Captain d'Andradi himself, 1 and the language of the representatives afforded evidence that the line agreed to must be taken in its entirety. Portugal, after having accepted the greater part which was to its advantage could not reject the other to the disadvantage of Great Britain without disturbing the balance of justice and deranging the equilibrium between the two governments. But what is more instructive in the case was the special effort in seeking evidence made by the arbitrator from prior negotiations which led up to the treaty of June i i , 1891. It was believed, according to the history of the negotiations, that the Marquis of Salisbury, representing Great Britain in negotiating the treaty, had sought to make longitude 33 0 the frontier from 1 8 0 30' to the Save, and Portugal having refused this proposal declared, through its minister, M. du Bocage, that it could consent to 32 0 30' as a dividing line, provided that due consideration would be given to modifications required by the geographical conditions. Consequently, the two proposals reduced the difference between the two lines to the tract of territory lying between longitudes 30° 3 1 ' and 33 It was, then, a compromise initiated by Lord Salisbury that instituted as a frontier line the " edge " of the eastern slope from 1 8 0 30' to the confluence of the Save with the Lunde, which gave rise to Article I I of the treaty. Furthermore, as the negotiators were quite aware of the possible controversial developments due to the irregularity of the mountainous plateau, they declared deliberately that the frontier, while following the sinuous course of the " edge ", should not expand beyond the 1 " The Leverson-d'Andradi line," said Captain d'Andradi, " was traced by making mutual concessions; there was the Leverson line and the d'Andradi line, and after prolonged discussion on the ground, in order to afford proof of a spirit of conciliation on both sides, the line above mentioned was determined on, though each was persuaded that his line was more in conformity with the text of the convention." Ibid., 5006.

166

THE INTERPRETATION

OF

TREATIES

limit advocated by the two governments, that is, meridian 33 0 to the east, proposed by England, and meridian 32 ° 30' to the west, proposed by Portugal. Basing his views chiefly on such evidence from the negotiations in respect to the limitation of the line, the arbitrator concluded that even if by chance it had been found that the " edge " came to an end before reaching the Save, this situation did not do away with the raison d'etre of the limit set forth by the t w o meridians. Although the reason why the principle of seeking evidence through prior negotiations, which prevailed so vividly throughout the case, was the specific provision of the comprotnis, it is not to be doubted that the effort made by the tribunal in thus ascertaining the standard is particularly illustrative of scientific interpretation. It is to be regretted that not infrequently jurists and writers are misled by some such rules as are manifest in the following w o r d s : " A l l mere verbal communications preceding the final signature of a written convention, are considered as merged in the instrument itself," 1 or " A l l communications, written or verbal, between the parties to a treaty preceding its signature, and relating to the subject thereof, are merged in the treaty." 2 T h e supposition that the prior negotiations leading up to a treaty could be merged into the latter document is a fantastic one. T h e mere words appearing in a treaty always require explanation, and in order that such explanation be scientifically made, the evidence such as that which exists in prior negotiations must be sought with the view of ascertaining the real design of the makers of the agreement. T o maintain that all that is necessary in interpreting a treaty is to exact a sense out of the words, clauses and sentences in the treaty itself, is l Wheaton,

Elements of International Law, 8th American ed. (Boston,

1866), p. 329-

'Field, Outlines of an International Code (New York, 1872), p. 82.

THE SOURCES

OF EVIDENCE

167

to deny the scientific approach to the problem, because the supposed " merging " into the final document often does not even yield a semblance of the sense which the negotiators sought to attach to the text of the agreement. VI. T H E C H I L E A N - P E R U V I A N ACCOUNTS ARBITRATION CASE

In the case of arbitration concerning the matter of the Chilean-Peruvian Accounts,1 however, it should be observed that the prior negotiation was not taken as an aid of interpretation. On March 2, 1874, a protocol was signed between Chile and Peru agreeing to submit to arbitration the pending dispute over the accounts of their expenditures incurred by the allied squadron during the war with Spain of 1865. Mr. C. A . Logan, then minister of the United States at Santiago, was asked to be the arbitrator. 2 Having secured the consent of his government, 3 he entered upon the discharge of his duties in the following October 4 and announced his decision in April of 1875. 5 dealing with the date of operation of the treaty of alliance signed on December the 5th, 1865, of which ratifications were exchanged January 14, 1866, Mr. Logan regarded some of the contemporary negotiations as though they were totally irrelevant. Under a peculiar state of facts, the Peruvian Government raised the question of computing the allied expense from an earlier date (October 17, 1865) than the signing of the treaty (December 5, 1865), and maintained an argument 1

2 Moore Arb. 2085-2107.

Mr. Logan to Mr. Fish, no. 57, April 1, 1874, MSS. Dept. of State, cited in 2 Moore Arb. 2086. 3

* Mr. Fish, Sec. of State, to Mr. Logan, May 8, 1874, cited in 2 Moore Arb. 2086. 4 Mr. Logan to Mr. Fish, no. 112, October 9, 1874, cited in 2 Moore Arb. 2086.

* U. S. For. Rel. 1875, pt. i, 185.

J68

THE INTERPRETATION

OF

TREATIES

fortified by the introduction of prior negotiations. Thus it was stated that on the 16th of October, 1865, a confidential agent of Chile, Señor Don Domingo Santa Maria, was in Peru with full authority, and dispatched a note to the Peruvian foreign minister Señor Don Juan Manuel L a Puente, " stating his desire to procure the assistance of the naval and land forces of Peru against Spain, which latter had already declared hostilities against Chile, by blocking its ports; and soliciting a personal audience, to lay the matter of his mission before him." 1 A s an outcome of this interview, the Peruvian Government issued a decree that four vessels should at once proceed to aid Chile, and the Peruvian minister sent an official note to Señor Santa Maria on the 17th of October, informing the latter of the fact and concluding in the following words: " this note together with the documents referred t o " (meaning the order placing the vessels named at the disposition of the Chilean Government with the decree of war against Spain), " being the preliminary of the intimate alliance, defensive and offensive, which is established henceforth between both nations." 2 On October 18, Señor Santa Maria sent a returning dispatch to the Peruvian minister, acknowledging the patriotism of Peru and accepting the order and assistance, but remarking as f o l l o w s : 3 The undersigned perfectly understands that the first foundation of the treaty of alliance, offensive and defensive, for opposing Spain, which ought to exist between Peru and Chile is already stipulated; but nevertheless, he thinks it would be convenient to frame some other stipulations to render the proceedings of both governments during the war they are engaged in, more expeditious. 1

2 Moore Arb. 2091. * Ibid., 2092. * Ibid.

THE SOURCES

OF

EVIDENCE

169

And on the 5th of December, 1865, a treaty was formally framed and signed. While from the recited facts the umpire admitted that the official preliminaries would be considered as part of the treaty and that the Peruvian vessels would be considered upon the common expense from October 1 7 , 1865, he endeavored to dismiss the point of contention by s a y i n g : 1 But the records show that, however good the intention in the matter of dispatching the vessels named may have been, it was not done by reason of internal difficulties connected with a change of government by that republic; that the said vessels did not become " disposable " for the purposes of the treaty until a much later date. There having been no actual compliance with the spirit or letter of the treaty until the date of its signature, the latter must be considered as the true starting point of the alliance. In the course of his reasoning the arbitrator seemed to underrate the value of diplomatic notes available to him, and to introduce and dismiss the so-called rule of " merger of preceding communications," without recognizing prior negotiations as a source of extrinsic evidence. He pointed out at the outset that the treaty in dispute was " indefinite," " incomplete " and " somewhat ambiguous," 1 and yet he contented himself by relying exclusively upon " the spirit and letter" of this incomplete document. It has been seen that on October 18, 1865, Seiior Santa Maria explicitly acknowledged to the Peruvian minister the existence of the foundation of the treaty of alliance; and that the raison d'etre of the formal agreement of December, 1865, was to set forth the exact relationship between the two allied countries, and was prompted by the prior negotiations between 1 2

2 Moore Arb. 2092. Ibid., 2090.

IJo

THE

INTERPRETATION

OF

TREATIES

Señor Santa Maria and the Peruvian minister themselves. T o say that the treaty was " incomplete " and at the same time to refuse evidence from prior negotiations would amount to interpreting arbitrarily the treaty in dispute, without heeding any system of principles respective to interpretation. It is interesting to note, however, that the mode of reasoning followed by the umpire was mischievously influenced by the so-called rule of merging previous communications to the formal document, which he quoted from the works of Wheaton 1 and Field. 2 This indeed is one among the many instances where interpreters are misled by certain artificial rules. W h a t is more the rule cited in the case was in all probability not even definitely understood by the umpire. This rule was open to two kinds of applications. In the first place, as the umpire seemed to have contemplated, 3 it might be taken to signify that as a rule of construction the final document would include ipso facto all the prior negotiations, and whatever signification the latter should bear out, it should be given due consideration. In the second place, as Ralston appeared to infer, 4 it might be taken as to mean that the final instrument would be supreme, and all prior negotiations should give way to the words of the formal document. 5 Both ' W h e a t o n , op. cit., p. 329. 1

Field, op. cit., p. 82.

* 2 M o o r e A r b . 2092. 4 Ralston, International London, 1910), pp. 4-5.

Arbitral

Law

and

Procedure

(Boston

and

6 Cf. the Sambiaggio Case where M r . Ralston, umpire, in ascertaining the sense of the protocol of February 12, 1903 between Italy and Venezuela as to whether it included the liability of revolutionary damages declared: " Consequent upon the revolutionary event of 1896 to 1900, injuries inflicted upon Italian citizens w e r e the subject of the diplomatic discussion between the countries. A careful examination of the correspondence shows that it did not relate to the questions of liability or nonliability f o r the acts o í revolutionists, but

THE

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OF

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171

of these views, however, help little in scientific interpretation, and as rides they are open to abuse. Prior negotiations should be so taken and so analyzed as a source of evidence in ascertaining the sense of terms employed. There is no necessity of considering them as being merged in the final agreement; there is always a necessity of considering them per se in order to secure light for the obscure passages of the treaty. The arbitrator of the Chilean-Peruvian controversy might have rendered a more enlightening opinion had he given appropriate weight to and scientific consideration of the prior negotiations so as to ascertain the design of the parties through such extrinsic evidence. VII.

T H E AROA

MINES

CASE

In order to understand clearly the principles of seeking extrinsic evidence and scrutinizing vital circumstances, the famous Aroa Mines Case,1 decided by the umpire of the British Venezuelan Mixed Claims Commission created by the protocol of February 13, 1903, 2 is worthy of careful rather to the power of Venezuela under its decree of February 14, 1873, republished January 24, 1901, to remit Italians and other foreigners to the local authorities for relief. Bearing in mind the fact that the only treaty obligations then existing was to indemnify against injury by the constituted authorities of the country we can readily understand why it was that in the diplomatic correspondence, as stated, no reference whatever exists to the question of liability for damages from acts of unsuccessful revolutionists, and none of the Italian claims submitted to the Venezuelan foreign office were for such injuries." Ralston, Venezuelan Arbitrations of 190$ (Washington, 1904), pp. 666, 687. See infra, pp. 238-240. :

Ralston, op. cit., pp. 344-387.

' T h i s protocol provided in part the following (ibid., p. 292) : * Whereas certain differences have arisen between the United States of Venezuela and Great Britain in connection with the claims of British subjects against the Venezuelan Government, the undersigned, Mr. Herbert W . Bowen, duly authorized thereto by the Government of Venezuela and Hii Excellency the Right Honorable Sir Michael H. Herbert, K.C.M.G.,

THE

INTERPRETATION

OF

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examination. T h e chief task before the tribunal therein was to interpret the words " claim," " injury," " seizure," " justice," " equity," etc., found in Article I I I of said protocol, so as to determine whether that instrument gave the tribunal jurisdiction respecting claims for injury to persons, or for injury to or w r o n g f u l seizure of property of British nationals caused by the troops of Venezuelan insurgents.' In making the award umpire Plumley made a careful analysis C.B., his Britannic Majesty's Ambassador Extraordinary and Plenipotentiary to the United States of America, have agreed as follows: "ARTICLE

I

" The Venezuelan Government declare that they recognize in principle the justice of the claims which have been preferred by His Majesty's Government on behalf of British subjects. "ARTICLE I I I

" The Venezuelan and British Governments agree that the other British claims, including claims by British subjects other than those dealt with in Article V I hereof, and including those preferred by the railway companies, shall, unless otherwise satisfied, be referred to a Mixed Commission constituted in the manner defined in Article I V of this Protocol and which shall examine the claims and decide upon the amount to be awarded in satisfaction of each claim. " The Venezuelan Government admit their liability in cases where the claim is for injury to, or wrongful seizure of property, and consequently, the questions which the Mixed Commission will have to decide in such case will only be; ( a ) Whether the injury took place and whether the seizure was wrongful, and (b) If so, what amount of compensation is due. " In other cases the claims shall be referred to the Mixed Commission without reservation. "ARTICLE

IV

" The Mixed Commission shall consist of one Venezuelan member and one British member. In each case where they come to an agreement their decision shall be final. In cases of disagreement the claims shall be referred to the decision of an umpire nominated by the President of the United States of America." 1 See the interpretation of the Italian-Venezuelan protocol by umpire Ralston in his opinion in the Sambiaggio Case (ibid., pp. 666, 679 et seq.), where, in respect to the principle of non-responsibility of the titular gov-

THE

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173

of the history of prior negotiations, and gave a painstaking presentation of the various circumstances under which the ernment f o r acts of revolutionists, although the same conclusion w a s made as that in the Aroa Mines Case, it is important to observe the distinctly different mode of interpreting the same document. Unlike the umpire of the Aroa Mines Case w h o took pains to search f o r the extrinsic evidence f r o m documents exchanged prior to the negotiation of the protocol, the umpire of the Sambiaggio Case, as an aid in interpretation, accepted several rules such as the f o l l o w i n g : T h a t when there are two admissible meanings, that is to be preferred which is least f o r the advantage of the party for whose profit a clause is inserted; that the sense which the acceptor of conditions attaches to them ought rather to be followed than that of the o f f e r e r ; that when there are two meanings admissible, preference should be given to that w h i c h the party proposing the clause knew at the time was held by the party accepting i t ; that doubtful provisions should be interpreted in the least onerous sense f o r the party obligated; that conditions not expressed can not be invoked by the party w h o should have clearly expressed them. It is obvious that such assertions are both misleading and mischievous, and that they, especially the last mentioned, tend to discourage any effort of seeking extrinsic evidence. But as the efficacy of rules of construction is discussed elsewhere, suffice it to note in this connection the significant fact that like conclusions may sometimes be arrived at by pursuing two opposing procedures of interpretation, and that it is probably for this reason that the ardent followers of Vattel as yet appear to be reluctant to surrender their faith in artificial canons. See also the Guastini Case (ibid., pp. 730, 753 et seq.). Cf. umpire Duffield's interpretation, in the Kummerow Case (ibid., pp. 326, 549 et seq.), of A r t i c l e s I and I I I of the German-Venezuelan protocol (which provided: " T h e Venezuelan Government recognize in principle the justice of the claims of G e r m a n subjects presented by the Imperial German G o v e r n m e n t . . . . Said [ M i x e d ] Commission shall decide both whether the different claims are materially well founded and also upon their amount. T h e Venezuelan Government admit their liability in cases where the claim is f o r injury to or a w r o n g f u l seizure of property and consequently the Commission will not have to decide the question of liability, but only whether the injury to or the seizure of property w e r e w r o n g f u l acts and what amount of compensation is due." Ibid., pp. 5 1 1 - 5 1 2 ) , and note his reasoning as to how the Venezuelan G o v ernment was held liable, " under her admissions in the protocol," f o r all claims f o r injuries to or w r o n g f u l seizures of property by insurgents. Cf. also the interpretation of the Spanish-Venezuelan protocol (ibid., pp. 917 et seq.) by umpire Gutierrez-Otero, in the Padrón Case (ibid., pp. 923 et seq.) and in the Mena Case (ibid., pp. 931 et seq.).

THE

INTERPRETATION

OF

TREATIES

protocol was agreed upon. In this way he accorded the controversial point an interpretation unhampered either by the literal provision of the document or by any artificial rules of construction. Indeed, throughout the opinion, he observed scrupulously and unfailingly the significance of external events and diplomatic communications, and thus assumed a judicial mode of solving the problem which was most in conformity with the principles of scientific interpretation. The British argument in support of the claim of the Aroa mines for damages caused by the revolutionists was based on the allegation that during the events which led to the signing of the protocol of February 13, 1903, the British Government suggested two alternative methods in dealing with claims such as the one under consideration, namely, that foreign claimants should not obtain compensation for damage due to the acts of revolutionists, and that in case any foreign claimants received such compensation, British subjects should receive the same treatment. 1 Since by the treaty of 1 8 3 5 between Great Britain and Venezuela the most-favored-nation clause was specifically stipulated,2 and since both German and French subjects had received awards from the umpires of the Venezuelan-French and the Venezuelan-German mixed commissions for damages caused by revolutionists, 3 the British were justified in presenting a similar claim. Furthermore, it was contended that the British Government had for a long time presented to the Venezuelan Government claims caused not only by the acts of troops under the control of the government, but also by the ' Ralston, Venezuelan Interpretation 1

of 190s, p. 344.

Ibid., p. 347: " In whatever relates to the safety of . . . merchandise, goods, or effects,... as also the administration of justice, the subjects and citizens of the two contracting parties shall enjoy... the same liberties, privileges and rights as the most favored nation." ' Ibid., pp. 348, 349.

THE

SOURCES

OF

EVIDENCE

175

acts of insurgents. Upon the failure to obtain any redress, the British Government joined the German Government in declaring a blockade of Venezuelan ports, and it was due to the desire on the part of Venezuela to have the blockade lifted that the terms of the protocol of February 1 3 were agreed upon. Consequently, so the British contention went, in view of such circumstances attending the signing of the arbitration agreement, the terms of the compact should not be given a narrow interpretation, and the liability assumed by Venezuela should cover both the acts of insurgents and those of government troops. The commissioner of the Venezuelan Government, on the other hand, pointed out that in respect to the provision of Article I I I that " the Government of Venezuela admit their liability in cases where the claim is for injury to, or wrongful seizure of, property . . . ," the standard of interpretation adopted by the contracting parties was legal rather than colloquial, 1 and that the Government of Venezuela should not be held responsible for injuries caused by the acts of revolutionaries, that is, such injuries for which the titular government are ordinarily not held responsible according to international law. As regards the British argument f o r the application of the most-favored-nation clause, the Venez1

It is interesting to observe that the Venezuelan commissioner in speaking of the weakness of the British argument concerning the circumstances under which the blockade was raised declared that " the examination of the preliminary work only entails the examination of the contentions and arguments which each of the contracting parties made and attempted to maintain contentions and arguments which must necessarily be at variance and even contradictory, as thus only could the controversy exist." (Ibid., p. 348.) This statement, however, should not be taken as a denial of the value of prior negotiations as a reasonable source of evidence, but it rather indicates that in considering prior negotiations care should be taken not to overemphasize one isolated circumstance as the British commissioner was inclined to do, but to examine rigidly all relevant circumstances.

THE

INTERPRETATION

OF

TREATIES

uelan commissioner contended that the said clause could noi apply to such matters as those purposely stipulated, namely in matters " relating to loading and unloading of vessels security of merchandise, goods and articles, the acquisitior of goods of all kinds and denominations by sale, donation exchange, testament, or any other way whatsoever, as alsc to the administration of justice." It was very clear, so the Venezuelan commissioner continued, that the latter provisior about the administration of justice was the only one which might be considered in a far-fetched way as relevant to the claim in question, but it was equally obvious that that provision was designed only to apply to rights before the courts of justice established by the local laws of each country rather than to apply to mixed commissions which were of a very extraordinary nature. A t any rate, as the mixed commissions should proceed separately and independently, the awards of other commissions could not be taken as a guide for the decision of the case under discussion. For these reasons, the British claim for damage caused by the acts of insurgents was considered to be unfounded. Such were briefly the contentions of the two opposing parties. It is worthy of note that the method of interpretation employed by each may be open to question. The British attempt, to be sure, seemed to harmonize with the scientific principle of searching for extrinsic evidence through declarations of the negotiators and through the attending circumstances for raising the blockade, and yet it may be doubted, as will be seen from the opinion of the umpire, whether all the cognate circumstances were carefully and impartially taken into consideration by the British commissioner in support of his argument. 1 T h e Venezuelan attitude, on the other hand, appeared to have the tendency to 1

Cf. the second reference to the umpire's regarding evidential value of

statements improperly verified in the de Letnos Case (ibid., pp. 310 et seq.).

THE

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OF

EVIDENCE

177

rely on literal interpretation,1 and to attach undue significance to views founded on certain rules of construction,2 while a judicial inquiry into the external circumstances and extrinsic evidence would have afforded by far the most convincing argument. Curiously and ironically enough, in deciding the case in favor of Venezuela, the umpire resorted to such a method of interpretation, with which the British commissioner appeared to be more in conformity than the Venezuelan commissioner, to wit, the method of seeking evidence through various prior negotiations. In presenting his able opinion, umpire Plumley first undertook to ascertain the significance attached to the terms " injury," " seizure," etc., as he had set forth in two previous decisions, that of the de Lemos Case/ and that of the Crossman Case* and then explained the source of evidence upon which he based his conclusions. In order to disprove the validity of the British contention that the protocol was signed as a condition precedent to the lifting of the blockade, the umpire presented at the outset the general mode of interpretation which he was to follow, namely, a careful analysis of the historical status of the issue and the circumstances surrounding the parties at the time the protocol was accepted. With the help of the Yellow Book of 1

Ralston, Venezuelan

Interpretation

of 190s, p. 348.

* Ibid., p. 349: " In case the clause w a s not p l a i n . . . it could not be interpreted in a sense which would burden the party bound (that is, V e n e z u e l a ) as violating juridic principles. These keep p o w e r f u l parties within the bounds of law, whereby they support the weaker and maintain the peace of the world." I t must be obvious that such a judicial attitude leaves much to be desired. It is evidently based on Vattel's famous canon in respect to interpretation of odious things (Vattel, op. cit., bk. ii, ch. xvii, sec. 308). W h e n a clause is not plain, w h y should it not be interpreted in a sense which would burden the party bound, if circumstances and evidence indicate that such a plan was voluntarily accepted by the parties. 3

Ralston, op. cit., p. 302.

lIbid.,

p. 298.

THE

INTERPRETATION

OF

TREATIES

Venezuela, as well as the Blue Book of Great Britain containing correspondence regarding the affairs of Venezuela, he surveyed all the relevant circumstances preceding and leading up to the blockade and also the subsequent negotiations which eventually produced the agreement in Controversy. Believing as he did in the value of external proof, 1 the umpire succeeded in obtaining sufficient evidence from documents exchanged to f o r t i f y his interpretation of various terms in the protocol. In view of the fact that the mode of interpretation followed throughout the opinion may be taken as typifying the scientific procedure of seeking extrinsic evidence, it is worth while to discuss the reasoning in some detail. Since the chief clause calling for interpretation was whether Venezuela should be held responsible for the damages due to the acts of insurgents, any light shed on the distinction between damages caused by Government authorities and those by revolutionary movements was evidently of great value in ascertaining the sense agreed upon by the contracting parties, and therefore it was important to note how in various ways the sense of terms employed by the negotiators was brought out through the correspondence in prior negotiations. T h e earliest incidents cognate to the final making of the protocol of February 13, 1903, began to take place in the spring of 1901. Cases such as the complaint against the " Venezuelan gunboat Augusto," 2 the outrage on J. N. 1 See Ralston, op. cit., p. 358: 1 Dallas, 426; 3 S. & R., 609; Bouvier, Bouvier's Law Dictionary, Rawle's ed. (Boston, 1897), vol. i, p. 1107: " Where there is a latent ambiguity which arises only in the application and does not appear upon the face of the instrument, it may be supplied by other proof." " T h e journals of a legislature may be referred to if the meaning of a statute is doubtful or badly expressed." (Ibid., vol. i, p. 417.) In case of doubt "there must always be reference to the surrounding circumstances." (Ibid., p. 1107.) 1

Ralston, op. cit., p. 359.

See representations made by the British min-

THE

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EVIDENCE

179

Kelly 1 by " Venezuelan soldiers," the burning of the sloop Maria Teresa 2 by " a Venezuelan gunboat," the losses of the vessel Sea Horse3 received at the hands of " an unnamed Venezuelan guardacosta," the seizure of the sloop Pastor * by the " Venezuelan gunboat Tutono," the fitting out of the Ban Righ/ the detention of the British sloop Indianathe destruction of the British vessel In Time 7 and the " seizure by a Venezuelan man-of-war on the high seas of the British vessel Queen," 8 etc., involved a number of communications from the British authorities to the Venezuelan Government, which communications had reference solely to legitimate ister resident at Caracas to the Venezuelan minister of f o r e i g n affairs prior to M a r c h 22, 1901 ( N o . 3 in the Blue B o o k of Great B r i t a i n ) . 1 See communication f r o m the British minister to the Venezuelan minister of foreign affairs on M a r c h 12, 1901 ( N o . 6 ) , w h i c h included the following:

" I will not dwell on the prejudicial effect on the interests of Venezuela herself caused by occurrences of this nature, as I feel sure that your excellency will agree with me in thinking that the injury d o n e — not by insurgents, but by soldiers of the Government—to an inoffensive and lawabiding immigrant " Note the distinction here d r a w n between " insurgents " and " soldiers of the G o v e r n m e n t " . ' See communication f r o m the British minister resident at C a r a c a s to the Marquis of Lansdowne, of date April 17, 1901 (inclosure 9 in N o . 1 1 ) . * See communication f r o m the British minister resident at C a r a c a s to the Marquis of Lansdowne, of date April 17, 1901 ( N o . 1 2 ) . 4

See communication f r o m the Governor of Trinidad to M r . Chamberlain,

of date October 3, 1901 (inclosure 1, in No. 24). ä See communication f r o m the customs to the British f o r e i g n office, of date November 8, 1901 ( N o . 25). 6 See communication f r o m the British colonial office to the British f o r eign office, of date January 25, 1902 ( N o . 49).

' S e e communication of the Governor of Trinidad to M r . Chamberlain, of date M a y 12, 1902 (inclosure I, in No. 88). 8 See communication of the British minister resident at Caracas to the Marquis of Lansdowne, of date June 30, 1902 ( N o . 106).

!8O

THE

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OF

TREATIES

claims against the Venezuelan Government, well founded according to international law, not embracing those arising from damage caused by insurgents. A s in a memorandum by the British foreign office dated July 20, 1902, 1 each of the aforesaid cases was given a condensed statement of the facts accompanying each alleged outrage, " the action of the British Government in connection therewith, and the position of the Venezuelan Government in reference thereto," there was left little room for conjecture that Great Britain was expecting to press any claim which could not be recognized by the law of nations. Furthermore, with respect to the case of Ban Righ, communications explicitly laid stress on the matter of governmental responsibility. In the dispatch from the British minister resident at Caracas to Marquis of Lansdowne, dated December 31, 1901 ( N o . 4 1 ) , there was this assertion, " I have warned the Venezuelan Government unofficially that any infraction of international law with regard to the life and property of British subjects should be avoided," and in the statement of the British foreign office to the Admiralty, dated August 8, 1902 ( N o . 1 1 5 ) , it was declared that " Lord Lansdowne is of opinion that the time has arrived when stronger measures must be resorted to for the purpose of bringing the Venezuelan Government to a sense of their international obligations." Thus throughout all the prior negotiations there was a constant allusion to claims based on justice and recognized by international law, and there was no allusion to claims due to losses caused by revolutionists. 2 1 Memorandum on existing causes of complaint against Venezuela by the British foreign office, of date July 20, 1902 ( N o . 108).

' See memorandum of the British foreign office communicated to the German ambassador on October 22, 1902 ( N o . 1 2 7 ) : " H i s M a j e s t y ' s Government have, within the last two years, had grave cause to complain of unjustifiable interference on the part of the Venezuelan Government with the liberty and property of British subjects " ; Communication from

THE

SOURCES

OF

EVIDENCE

181

Moreover, the light shed by the notes exchanged between Germany and Great Britain was not less significant. In the communication from the Marquis of Lansdowne to Mr. Buchanan dated November 26, 1902 ( N o . 1 5 3 ) , the German ambassador to Great Britain was quoted as having stated that " the Imperial Government also concur in the further proposal of His Majesty's Government to demand at once from the Venezuelan Government the acceptance in principle of all the German and English claims," and suggested that both Governments should present simultaneously an ultimatum " in which each power should embody its own collective demands, referring at the same time to the demands of the other powers." 1 O n December 2, 1902 ( N o . 1 6 1 ) , the Marquis of Lansdowne communicated to the British minister resident at Caracas the contents of the ultimatum to be presented to Venezuela and instructed the British envoy to state that the British Government could not accept the Venezuelan note as in any degree a sufficient answer to your communications, or as indicating an intention on the part of the Venezuelan Government to meet the claims which His Majesty's Government have put forward and which must be understood to include all well-founded claims which have arisen in consequence of the late civil war and previous civil wars and of the maltreatment or false imprisonment of British subjects, and also a settlement of the external debt. Marquis of Lansdowne to the British ambassador to the United States, November 11, 1902 (No. 134) to the same effect; Communication from the Marquis of Lansdowne to Mr. Buchanan of date November 17, 1902 (No. 140): "An arrangement... would be equitable as regards the Venezuelan Government, and would, moreover, prevent pressure being exercised in cases, such as might possibly occur, where the Venezuelan member of the Commission could prove a claim to be unfounded or excessive." 1

Ralston, op. cit., p. 364.

J82

THE INTERPRETATION

OF TREATIES

You will request the Venezuelan Government to make a declaration that they recognize in principle the justice of these claims. On December 7, 1902, the ultimatum of the British Government and that of the German Government were presented by their respective representatives at Caracas to the Venezuelan Government. The British ultimatum was framed according to the aforesaid instructions of the Marquis of Lansdowne, and the German ultimatum was in part as follows:1 The Government of the Republic argues, in the first place, that by reason of the domestic legislation of the country, the settlement by diplomatic action of the claims of foreigners growing out of the wars is not admissible. It thus sets up the theory that diplomatic intervention may be barred by domestic legislation. This theory is not in conformity with international law, since the question of deciding whether such intervention is admissible is to be determined not according to provisions of domestic legislation, but in accordance with the principles of international law. The Venezuelan Government, aiming to demonstrate that the diplomatic prosecution of claims is inadmissible, further cites article 20 of the treaty of amity, commerce, and navigation between the German Empire and the Republic of Colombia of the 23d of July, 1892. But this argument does not seem to have weight, first, because the treaty is operative between the Empire and Colombia only, and, besides, because section 3 of the said article in nowise opposes the diplomatic prosecution of German claims growing out of acts committed by the Colombian Government or its agents. . . . In the first place, the claims originating at an earlier period than the 23d of May, 1899—that is, prior to the accession of the present President of the Republic—are not, under the decree, to be taken into consideration, whereas Venezuela will be mater1

Ralston, op. cit., p. 365.

THE

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OF EVIDENCE

183

ially held responsible for the acts of its preceding Governments. . . . By order of the Imperial Government I have also to ask that the Venezuelan Government will forthwith make a statement in the sense that it recognizes, in principle, those claims as valid and that it is disposed to accept the decision of a mixed commission for the purpose of having them determined and guaranteed in every particular. In response to these demands the Venezuelan Government did not hesitate to make known its readiness in recognizing " the justice of obligations which are provided for in the national laws," but admitted no responsibility respecting claims which were not " well founded " or not " in accordance with justice." 1 What is more noteworthy, none of the 1 Ralston, op. cit., pp. 365-366. The answer by the Venezuelan secretary for foreign affairs addressed to the British minister resident at Caracas of date December 9, 1902 (inclosed in No. 217) were in part as follows: " Your excellency then enters into the question of the British claims and asks, in the name of your Government, that Venezuela should declare that they are just in principle, and you finally allude to the necessity of paying them and to the common action which the United Kingdom and the German Empire have agreed to exercise in order to compel the Republic to do so " There is no reason why the Federal Government should not recognize the justice of obligations which are provided for in the national laws, and on this point you may be perfectly sure that the interests in question will be always protected and duly attended to. " With reference to the claims, your excellency would seem to refer definitely to those which you enumerated in a note of the 20th February, 1902, amounting, in your opinion, to 36,401 bolivars. The examining commission created with the agreement of the national legislative body will take them into consideration and will settle them in accordance with justice. The remaining cases which are not answered in the correspondence depend, as far as they can be considered as constituting claims, on facts which have to be proved or defined, and which the competent authorities will attend to or are attending to. And since your excellency speaks of well-founded claims, it does not appear possible that such cases, in their actual condition or legal position, can have the same character as those which are explained in documents which testify to their char-

Ï84

THE INTERPRETATION

OF

TREATIES

communications leading to the ultimata w e r e found to bear any suggestion of Venezuela's recognition of claims due to acts of insurgents.

In this connection it is pertinent to re-

view several notes exchanged previously between the British and Venezuelan Governments. O n December 1 7 , randum

1902

(No.

194)

there was a memo-

(which had been communicated

to the

German

Reichstag by Count Biilow, on December 9,

1902)

warded to the British Government by Count

Metternich,

for-

and the latter specifically complained against acts of violence committed by the Venezuelan troops, 1 and pointed out that acter and which give an opportunity of enlightening the judgment or guiding the decision of the body who will consider them." The answer addressed to the Chargé d'Affaires of the German Empire resident at Caracas included the following: "And inasmuch as the very highest principles of international law have precisely been taken for a foundation of the defense of the position of Venezuela presented in the memorandum of March 9, 1901, it was found with extreme surprise that you ascribed to the Government a purpose to consider the question in no other light than that of domestic legislation.... If the claims under discussion are just claims, the Federal Executive, as an honored and civilized power, hastens here and now to give the assurance that those claims will be examined and passed upon as such ; and inasmuch as the proper board is already organized, there is no occasion for dilatoriness or the slightest departure from the rules laid down by the law in the conduct of the proceedings.... The claims growing out of the war, that is still desolating and devastating a part of the Republic, will share fully in all the rights that are established by the law regulating the matter." 1 Ibid., p. 369 : " It may be added that the Germans in the latest civil war have been treated in a particularly inimical manner. The acts of violence, for instance which were committed by the Government troops when they plundered Barquisimeto, were principally committed at the expense of German houses. This attitude of the Venezuelan authorities would, if not punished, create the impression that Germans in Venezuela were abandoned without protection to the arbitrary will of foreigners, and would be calculated seriously to detract from the prestige of the Empire in Central and South America, and be detrimental to the large German interests which have to be protected in those regions."

THE

SOURCES

OF

EVIDENCE

" the German claims are not only pecuniary, but also based on the ill-treatment of Germans by the Venezuelan authorities." From this document alone it may be safely concluded that the acts of insurgents were excluded from the claims contained in the German ultimatum. A s regards the British viewpoint, it was similarly manifested in several important communications. O n December 18, 1902 ( N o . 199) the Marquis of Lansdowne notified Sir F. Lascelles that the German ambassador had informed him of his Government's agreement with Great Britain regarding the Venezuelan plan for arbitration, and that his Government desired to make certain reservations. 1 T w o days later the Marquis of Lansdowne sent to Sir F . Lascelles a copy of the reply made by Germany in return to the Venezuelan proposals, and in this document there were reserved from arbitration claims which originated in the Venezuelan civil wars from 1898 to 1 These reservations were submitted in a written memorandum, which included the following {ibid., p. 370) : "All further demands contained in the two ultimata shall be submitted to the proposed court of arbitration. The latter will therefore have to consider not only the claims in connection with the present Venezuelan civil war, but also, as far as Germany is concerned, the demands mentioned in the memorandum laid before the Reichstag of German subjects arising from the nonfulfillment of liabilities incurred by contract by the Venezuelan Government. The court of arbitration will have to decide both on the material justification of the demands and on the ways and means of their settlement and security.

" 1. The shipping claims are not to be referred to arbitration. " 2. In cases where the claim is for injury to, or wrongful seizure of, property, the questions which the arbitrators will have to decide will only be— " (a) Whether the injury took place and whether the seizure was wrongful; and " (b) If so, what amount of compensation is due. That in such cases a liability exists must be admitted in principle."

!86

THE

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1900, and of which details are given in the inclosed memorandum of the 8th December, which was communicated to the Reichstag. It will be seen that they consist of claims on account of acts of violence on the part of the Venezuelan Government or their agents. . . . All other claims which have been put forward in the two ultimata could be submitted to the arbitrator. The arbitrator will have to decide both about the intrinsic justification of each separate claim, etc. In the case of claims in connection with damage done to, or unjustifiable seizure of property, the Venezuelan Government will have to recognize their liability in principle, so that the question of liability will not form the subject of arbitration, but the arbitrator will be concerned solely in the questions of the illegality of the damage or seizure. . . . The Government of the United States of America would be conferring an obligation on the Imperial and British Governments if by exercising their influence over the Venezuelan Government, they could succeed in persuading the latter to accept these proposals. O n December 23, 1902 (No. 209) Great Britain dispatched a memorandum to Mr. Henry White, Secretary of the American Embassy at London, which contained the expression, " His Majesty's Government have, moreover, already agreed that in the event of the Venezuelan Government making a declaration that they will recognize the principle of the justice of the British claims . . . , " and on January 1, 1903, Mr. White transmitted to the Marquis of Lansdowne a copy of a telegram, via Secretary Hay, from Mr. Bowen, in which there was a signed communication from President Castro, saying, " I recognize, in principle, the claims which the allied powers have presented to Venezuela." The British and German Governments, however, were not satisfied with President Castro's recognition " in principle," and insisted that the latter should give unreserved

THE

SOURCES

OF

EVIDENCE

acceptance of the conditions made.

187

O n January 6, 1903,

M r . B o w e n telegraphed to M r . H a y , President Castro's assertion " that the claims against him are purely commercial in character; that he acknowledges that he must pay such of them as are just,"

and on January 9, 1903, President

Castro complied with the allies' wish in the following words : " T h e Venezuelan Government accepts the conditions Great Britain and Germany."

of

Here the umpire asserted

that the conditions so presented were nothing otherwise than that Venezuela " will recognize the principle

of the

justice

Furthermore, in the agreement of January 27,

1903,*

of the British claims."

1

signed by Mr. Bowen, in respect to the 30 per cent, of the total income of the ports of L a Guaira and Puerto Cabello the Venezuelan minister f o r foreign affairs made an important statement indicating his understanding of the claims to which Venezuela was held responsible : I hereby agree that Venezuela will pay 30 per cent, of the total income of the ports of La Guaira and Puerto Cabello to the nations that have claims against her, and it is distinctly understood that the said 30 per cent, will be given exclusively to meet the claims mentioned in the recent ultimatums of the allied pozvers and the unsettled claims of other nations that existed when said ultimatums were presented. O n January 24, 1903, the imperial C h a r g é d'Affaires at W a s h i n g t o n presented a document to M r . Bowen in relation to the claims of Germany against Venezuela, which included the following : 3 All the other claims which have already been brought to the knowledge of the Venezuelan Government in the ultimatum de1

Ralston, op. cit., p. 371.

2

Ibid., pp. 371-372, 1039.

*Ibid., pp. 372, 1037. umpire's.)

(Heretofore italics in quoted passages mostly

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livered by the imperial minister resident at Caracas, i. e., claims resulting from the present civil war, . . . are to be submitted to a mixed commission should an immediate settlement not be possible. III. The said commission will have to decide both about the fact whether said claims are materially founded and about the manner in which they will have to be settled or which guaranty will have to be offered for their settlement. Inasmuch as these claims result from damages inflicted on property or the illegal seizure of such property, the Venezuelan Government has to acknowledge its liability in principle, so that such liability in itself will not be an object of arbitration, and the decision of the commission will only extend to the question whether the inflicting of damages or the seizure of such property was illegal. The commission will also have to fix the amount of indemnity. On February 5, 1903, the Marquis of Lansdowne sent advices to the British Ambassador at Washington that a separate telegram was being sent to the latter " which contains the draft of a protocol embodying the conditions which have already been accepted by Mr. Bowen." A n d the third article of this protocol was identical with the protocol of February 13. *9°3Such was the history of the diplomatic negotiations prior to the conclusion of the protocol in controversy, and a careful review of all the notes exchanged convinced the umpire that " President Castro understood he was admitting the liability of his Government only for such claims as were ' j u s t ' ; that Mr. Bowen understood he was submitting to arbitration only the matters contained in the ultimatum of each of the allied powers " ; that in all the conferences appearing in the documents there was not " a sentence, a phrase, or a word directly or indirectly making claim to indemnity for losses suffered through acts of insurgents or directly or indirectly making allusion thereto," 1 but " on 1

Ralston, op. cit., p. 383.

THE SOURCES

OF

EVIDENCE

189

the contrary, Germany had stated their claims to be based on ' acts of violence on the part of the Venezuelan Government or their agents,' and the statements of Great Britain were not opposed, but wholly consistent t h e r e w i t h . " 1

Conse-

quently, it w a s held that " Venezuela did not specifically agree in the protocols to be subject to indemnities f o r the acts of insurgents."

2

It goes without saying that the umpire's reliance on prior negotiations characterized the scientific method of interpretation followed by him.

H a d the protocol been considered

as " self-contained," or as having " no need of interpretation," the result would have been entirely different.

E v e n if

a strictly " literal " or " broad " interpretation were entertained, gross injustice would have been done to Venezuela. Y e t , in rendering the decision, the umpire did not rely on prior negotiations alone, but also searched f o r evidence f r o m other external sources and vital circumstances.

H e called

attention to the fact that the treaty of 1 8 9 2 between G e r m a n y and Colombia, 3 and those of 1 8 6 1 1

Ralston, op. cit., p. 373.

4

and 1 8 9 2

8

between Italy

' Ibid., p. 383.

' Article 20, sec. 3 : " I t is also stipulated between the contracting parties that the German Government will not attempt to hold the Colombian Government responsible, unless there be due want of diligence on the part of the Colombian authorities or their agents, for the injuries, vexations, or exactions occasioned in time of insurrection or civil war to German subjects in the territory of Colombia, through rebels, or caused by savage tribes beyond the control of the Government." * Article 4: " I n cases of revolution or interior war the citizens and subjects of the contracting parties will, in the territory of the other, have the right of being indemnified for damages and losses which may be caused to their persons or property by the constituted authorities of the country on the same terms as the nationals would have a right to indemnification according to the laws which prevail in such country." 5 Article 21, sec. 3 : " I t is also stipulated between the two contracting parties that the Italian Government will not hold the Colombian Government responsible, save in the case of proven want of due diligence on the part of the Colombian authorities or of their agents, for injuries occasioned in time of insurrection or civil war, to Italian citizens in the

THE

INTERPRETATION

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and Venezuela, uniformly recognized the current theory that the titular government should not be held liable for damage caused by the acts of unsuccessful insurgents, and that