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ticular sense, a contracting state, notwithstanding that fact, has given its consent with the desire and intention to accomplish a purpose or secure a right inconsistent therewith. Such an intention or volition is not decisive of the rights of the parties under their agreement. Says Professor Wigmore:
Interpretation as a legal process is concerned with the sense of the word used, and not with the will to use that particular word.
The situation is like that of two men, A and B, who may have agreed to use a particular code in their contracts by telegram. A, in response to an offer by B, telegraphed a word which according to the code signified his acceptance. A may have supposed that by so doing he was merely asking for a better price. The fact that he did not intend to accept the offer, but that he believed the word which he telegraphed signified something other than acceptance, is immaterial. Not by consulting A's intention or volition, but by reference to the code, are the rights of the parties to be determined; for the fact has been established that according to mutual understanding the code should be the standard of interpretation.
The demands which a state may make upon another at the time of entering into their contract, the facts known to their plenipotentiaries, the correspondence or interchange of views leading up to and forming a part of the final negotiations, may all be important. Whatever be its form, evidence of the signification attached by the parties to the terms of their compact should not be excluded from the consideration of a tribunal intrusted with the duty of interpretation. When the fact is established that the parties adopted a particular standard of interpretation - that they used expressions with a particular signification of their own choice — it is immaterial how widely that signification may differ from any other."
6 Evidence, IV, 3471. See also Scott's Cases, Int. L., 426, note by the editor.
7 The treaty between the United States and Switzerland of November 25, 1850, provided for most-favored-nation treatment“ in the importation, exportation, and transit” of their respective products. In 1898 the Swiss Government claimed that by virtue of Articles VIII, IX, X, and XII it was entitled to demand for Swiss importations into the United States such concessions as were accorded French importations under a reciprocity agreement between the United States
An instructive case was decided by the umpire of the BritishVenezuelan Commission, established in accordance with the terms of the protocol of February 13, 1903, providing for the arbitration of British claims before a mixed commission. Article III of that instrument declared that
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 cases 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.S
and France of May 28, 1898. (Mr. Pioda, Swiss Minister, to Mr. Day, Secretary of State, June 29, 1898, U. S. For. Rel., 1899, 740). Mr. Day, Secretary of State, pointed out “ that a reciprocity treaty is a bargain and not å favor, and that it therefore does not come within the scope of the most-favored-nation clause." (Id., 740.) It was urged, however, by the Swiss Minister that according to the understanding of the signatory parties in 1850, expressly shown by the American plenipotentiary, Mr. Mann, who negotiated the treaty, that out of friendly regard for Switzerland no limitation should be attached to the most. favored-nation clause. (Id., 742.) Mr. Hay, Secretary of State, in a note to the Swiss Minister, November 21, 1898, admitted that the American Minister who conducted the negotiations agreed to the interpretation advanced by Switzerland, that the treaty was ratified in both countries with the distinct understanding that it should apply to reciprocity treaties. He, therefore, concluded “under these circumstances we believe it to be 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.” (Id., 747-748.)
In Geofroy v. Riggs, 133 U. S. 258, at 271, the court says: “ It is a general principle of construction with respect to treaties that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. As they are contracts between independent nations, in their construction words are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended.” See also United States v. Payne, 8 Fed. Rep. 883, 892; Strother v. Lucas, 12 Pet. 410, 436; United States v. Arredondo, 6 Pet. 691, 710, 741.
According to the convention of January 24, 1903, between the United States and Great Britain for the settlement of the Alaskan boundary dispute before a joint tribunal, it was agreed that the court should consider certain articles of the Russian-British treaty of February 28/16, 1825, and of the Russian-American treaty of March 30/18, 1867, and that “the tribunal shall also take into consideration any action of the several governments or of their respective representatives preliminary or subsequent to the conclusion of said treaties so far as the same tends to show the original and effective understanding of the parties in respect to the limits of their several territorial jurisdictions under and by 8 Ralston's Reports, Venezuelan Arbitrations of 1903, 292.
In behalf of Great Britain it was contended that by its agreement Venezuela had assumed liability for injury to or wrongful seizure of property respectively committed or taken by forces of unsuccessful rebels. Venezuela, however, asserted that liability was admitted only for such claims as were “just” according to international law, and that there was no assumption of liability for acts of revolution
virtue of the provisions of said treaties.” (U. S. For. Rel., 1903, 488, 491.) It was further agreed that seven specified questions as to the interpretation of the Russian-British treaty should be answered and decided by the tribunal. In the course of his instructive opinion on the fifth question Lord Alverstone, the president of the tribunal, said: “It is in my opinion correctly pointed out, on behalf of the United States, that the word 'coast' is an ambiguous term, and may be used in two, possibly more than two, senses. I think, therefore, we are not only entitled, but bound to ascertain as far as we can from the facts which were before the negotiators the sense in which they used the word 'coast' in the treaty. Before considering this latter view of the case, it is desirable to ascertain as far as possible from the treaty itself what it means, and what can be gathered from the language of the treaty alone.
This consideration, however, is not sufficient to solve the question; it still leaves open the interpretation of the word 'coast' to which the mountains were to be parallel.” (Proceedings of the Alaskan Boundary Tribunal, I, Part I, 36, 37, 39.) See the opinions of the American members of the tribunal, Messrs. Root, Lodge, and Turner (id., I, Part I, 43, 48–49); opinion of Sir. L. Jetté (id., I, Part I. 65–79); Rules of Construction and Interpretation presented in argument of the United States (id., V, Part 1, 6-11); evidence to be considered in the American case (id., V, Part I, 11). It is said in the United States counter-case that “the United States asserts that the intention of the parties to the treaty is vital to its true interpretation; that such intention between nations is the very essence of the agreement; and that any material variance from the intention must give place to an interpretation in accordance with it." (Id., IV, Part I, 40.) the counter-case of Great Britain it is said that “the function of the tribunal is to interpret the articles of the convention by ascertaining the intention and meaning thereof, and not to recast it. Any considerations showing that the words of the treaty must have been intended to bear a particular meaning, being a meaning which they are in themselves capable of bearing, may, of course, be legitimately presented.” (Id., IV, Part III, 6.) See also argument of Great Britain (id., V, Part II, 37); oral argument of Mr. Taylor (id., VII, 578–579); Mr. Robinson (id., VII, 501-502, 506–507, 514-516); Mr. Watson (id., VI, 363364); Judge Dickinson (id., VII, 731-732).
ary troops without proof of any fault on the part of the titular government. In support of the British interpretation it was urged that the circumstances attending the signing of the protocol, particularly the fact that Venezuela entered into the arbitration agreement as a condition precedent to the lifting of the blockade of its ports by Great Britain and its allies, proved conclusively that the words of the compact should be given their broadest colloquial sense, and that therefore the admitted liability should cover acts of revolutionary as well as of governmental forces. It was not denied by the umpire, Mr. Plumley, that it might have been possible for the contracting states to use the words according to the British contention; nor that if such fact were established any rule of law would require him to disregard the sense which the parties themselves had attached to the terms of their own agreement.
In his search for sources of interpretation the umpire made a careful review of the circumstances leading up to the agreement. The diplomatic correspondence between the two Governments was rigidly examined. His conclusion was that “President Castro understood he was admitting the liability of his Government only for such claims as were just;' that Mr. Bowen (representing Venezuela) understood he was submitting to arbitration only the matters contained in the ultimatum of each of the allied powers ; that in none of the correspondence or conferences of the allies with Venezuela was there "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; that while the British Government thought the terms of the agreement broad enough to include such claims, it could not invoke a construction which Venezuela neither knew of nor had reason to know of, and to which it therefore had never assented. “ Hence the umpire holds that Venezuela did not specifically agree in the protocols to be subject to indemnities for the acts of insurgents.
• The Aroa Mines (Ralston's Reports, Venezuelan Arbitrations of 1903, 344, 350, 383). See also the Crossman Case (id., 298) and the De Lemos Case (id., 302), both also decided by the umpire of the British-Venezuelan Commission.
Identical expressions in the Italian-Venezuelan protocol of the same date were
Declarations made by the negotiators of a treaty at the time of exchange of ratifications, or subsequent thereto, concerning the sense
given like interpretation by Mr. Ralston, umpire of the Italian-Venezuelan Com. mission, in a well-considered and instructive opinion in the Sambiaggio Case (id., 666, 679). But see the interpretation of the German-Venezuelan protocol by the umpire, General Duffield, in the Kummerow Case (id., 526, 549); that of the Spanish-Venezuelan protocol by the umpire, Mr. Gutierrez-Otero, in the Padrón Case (id., 923), and in the Mena Case (id., 931).
Note also the following cases involving the interpretation of international agreements:
Case of Joseph Chourreau before the French and American Claims Commission, under the convention between the United States and France of January 15, 1880, and the decision of Mr. Felinghuysen, Secretary of State, as to the interpretation of the terms territory” ” and “territorial jurisdiction” employed in the convention. (Moore, Int. Arbitrations, II, 1145, 1146, citing H. Ex. Doc. 235, 48th Cong., 2 sess., 16; also Boutwell's Report, 134.)
Opinion of the umpire, Sir Frederick W. A. Bruce, in the Capitation Tax Case, as to the power of the commission under the convention between the United States and Colombia of February 10, 1864, to determine whether a certain tax imposed by Panama was in violation of Articles II, III, and XXXV of the treaty between the United States and New Granada of December 12, 1846. (Moore, Int. Arbitrations, II, 1412.)
Opinion of Mr. Alexander S. Johnson, American commissioner of the joint commission under the British-American treaty of July 1, 1863, in the case of the Puget's Sound Agricultural Company concerning the interpretation of Article IV, treaty of June 15, 1846, between the United States and Great Britain. (Moore, Int. Arbitrations, I, 266.)
Sentence and award of Mr. C. A. Logan, arbitrator in the matter of the Chilean-Peruvian Alliance of December 5, 1865, under the Chilean-Peruvian protocol of March 2, 1874. (Moore, Int. Arbitrations, II, 2086.)
Opinion of Mr. John Little, commissioner in the case of William H. Aspinwall, executor of G. G. Howland and others, v. Venezuela, No. 18, United States and Venezuelan Claims Commission under convention of December 5, 1885, as to whether bonds of Venezuela were included among the claims to be submitted to arbitration before the commission. (Moore, Int. Arbitrations, IV, 3616.) Also opinion of Mr. John V. L. Findlay, commissioner (id., 3642).
Decision of Mr. John Little, commissioner of the United States and Venezuelan Claims Commission, under the convention between the United States and Venezuela of December 5, 1885, as to the character of the proceedings under the treaty. (Moore, Int. Arbitrations, II, 1677.)
In the course of an elaborate opinion in the Manica arbitration between Great Britain and Portugal, under the Acte de Compromis of January 7, 1895, the arbitrator, Signor Paul Honoré Vigliani, said: “In our case the rule of legal interpretation, according to which the expressions made use of in a contract must be taken in the sense most in accordance with the intentions of the parties who