« AnteriorContinuar »
in which it was understood that certain terms were employed are of value as sources of interpretation and should not be disregarded.10
have arranged it and the most favorable to the aim of the contract, obliges us to give to the word 'plateau' the broadest possible signification — that is to say, to require only the minimum normal altitude - so as to be able to affirm its existence as far as the Save, as the high contracting parties had supposed, and so as thus to render possible the application of the text of Article II of the treaty.” (Moore, Int. Arbitrations, V, Appendix, 4985, 5011.)
In the case of Marryatt v. Wilson, 1 Bosan. & Puller, 435, 436, Chief Justice Eyre said: “We are to construe this treaty as we would construe any other instrument, public or private. We 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." Mr. Morse, the arbitrator in the Van Bokkelen Case, says that “Marryatt v. Wilson is strong authority for the proposition that the municipal tribunals of the country may not nullify the purpose and effect of treaty language by imposing upon it a cramped, narrow, and forced construction.” (Moore, Int. Arbitrations, II, 1840.)
Opinion of the arbitrator, Mr. Alexander Porter Morse, in the case of Charles Adrian Van Bokkelen, under the protocol between the United States and Haiti of May 24, 1888, concerning the interpretation of the treaty between those States November 3, 1864. (Moore, Int. Arbitrations, II, 1813.)
Napier et al v. The Duke of Richmond, Journ. du. Pal., year 1839, II, 2, cited in the Van Bokkelen Case. (Moore, Int. Arbitrations, II, 1830.)
Case of Lewis S. Hargous before the United States and Mexican Claims Commission: Convention of April 11, 1839, concerning the scope of the powers of the commission under the convention, and the nature of claims for which liability was assumed. (Moore, Int. Arbitrations, II, 1267.)
Note the language of His Imperial Majesty the Emperor of Russia, interpreting Article I of the treaty of Ghent of December 24, 1814, as arbitrator under Article V of the convention between the United States and Great Britain, October 20, 1818; also the reasons given for the method of interpretation employed. (Moore, Int. Arbitrations, I, 359, 360.)
See also Goetze v. United States, 103 Fed. Rep. 72; Schultze v. Schultze, 144 III. 290; Adams v. Akerlund, 168 III. 632; Tucker v. Alexandroff, 183 U. S. 424.
10 Prior to the exchange of ratifications of the Clayton-Bulwer treaty of 1850, Sir Henry Bulwer, the British Minister, made a declaration at the Department of State that his Government did not understand the engagements of that convention to apply to the British settlement at Honduras, or to its dependencies. Mr. Clayton, Secretary of State, in reply acknowledged that he understood British Honduras was not embraced in the treaty, at the same time declining to deny or affirm British title to the territory in question. The Secretary adverted to the fact that he had been informed by the Chairman of the Senate Committee on Foreign Relations, Mr. W. R. King, that the Senate perfectly understood that the treaty did not include British Honduras.” (H. Ex. Doc., 34th Cong., 1 Sess., 119; Moore, Int. Law Dig., III, 136–137.) Lord Clarendon, in the course of a note to Mr. Buchanan, May 2, 1854, said: “It was never in the contemplation of Her Majesty's Government, nor in that of the Government of the United States, that the treaty of 1850 should interfere in any way with Her Majesty's settlement at Belize or its dependencies.” (Brit. & For. St. Pap., XLVI, 267; Moore, Int. Law Dig., III, 138.) The statements of Sir Henry Bulwer and Messrs. Clayton and King were clearly evidence of the fact asserted. For that purpose, and for that alone, they were entitled to consideration. It must be obvious that these gentlemen did not possess the power to amend a treaty between the United States and Great Britain. Owing, however, to their official positions they necessarily had precise knowledge of the fact in question. The evidential quality of their declarations in regard to it could not be ignored.
As the sense which contracting states have attached to the terms of their agreement is controlling in the estimation of those to whom are entrusted the duty of interpreting treaties, as all circumstances probative of that fact are admissible for the purpose of its establishment, the formation of rules of interpretation can hardly serve a useful purpose. Times when proof is not to be had are rare. Even
The reason why declarations of intention could not be given in aid of interpretation of the documents at common law, save in certain exceptional circumstances, was that they were considered dangerous for a jury who, not being expert in such matters, might attach to them too great weight. This objection is not applicable to the interpretation of agreements between states. Declarations of their plenipotentiaries, in so far as they indicate the sense in which the terms of a treaty are employed, are valuable not merely because they are enlightening, but also because they may be safely entrusted to the consideration of judges of international tribunals, or to ministers of state.
See also Mr. Marcy, Secretary of State, to Mr. Buchanan, December 30, 1853. Correspondence in Relation to the Proposed Interoceanic Canal (Washington, 1885), 247. Moore, Int. Law Dig., III, 137.
See also Lord Granville to Mr. West, Minister at Washington, December 30, 1882, U. S. For. Rel., 1883, 484; Memorandum of Mr. Olney, Secretary of State, 1896, on the Clayton-Bulwer treaty, Moore, Int. Law Dig., III, 203, 207; Crandall, Treaties, Their Making and Enforcement, 226–227; The Diamond Rings, 183 U. S. 176.
A commission under Article V of the Jay treaty of November 19, 1794, between the United States and Great Britain was established to decide what river was the River St. Croix intended by the treaty of 1782-1783, forming a part of the boundary between the United States and New Brunswick. There was at that time no river known as the St. Croix. The depositions of John Adams and John Jay, surviving negotiators of the treaty of 1782-1783, as well as a letter of Benjamin Franklin, also a negotiator of that treaty, were received in evidence as declarations concerning the original negotiations and the agreement itself. (Moore, Int. Arbitrations, I, 18-22.)
when it is wholly lacking it is dangerous to impute to a state assent to a particular significance of the words of a treaty. Where various inferences may be reasonably deduced from the conduct of the signatory parties under given circumstances, it is obviously unjust to assert as a rule that any one of them should be controlling. It is only the single reasonable inference which must be deduced from the conduct of the contracting parties which can be safely trusted. Circumstances compelling such an inference, however, sometimes exist. If, for example, it should appear that it would have been unreasonable, if not inconceivable, for a contracting state to agree to any but a particular signification of certain terms employed the necessary inference that such state had acted reasonably, if not wisely, will prevail, although such a signification may be at variance with the literal sense of the words of the compact.11
11 In his award in the Reserved Fisheries Arbitration under Article I of the reciprocity treaty between the United States and Great Britain of June 5, 1854, the umpire, Mr. John Hamilton Gray, said: “ But might it not also be assumed that where a country had, by a long series of public documents, legislative enactments, grants, and proclamations, defined certains waters to be rivers, or spoken of them as such, or defined where the mouths of certain rivers were, and another country subsequently entered into a treaty with the former respecting those very waters, and used the same terms, without specifically assigning to them a different meaning, nay, further stipulated that the treaty should not take effect in the localities where those waters were, until confirmed by the local authorities, might it not be well assumed that the definitions previously used, and adopted, would be mutually binding in interpreting the treaty, and that the two countries had consented to use the terms in the sense in which each had before treated them in their public instruments, and to apply them as they had been previously applied in the localities where used ? I think it might.” (Moore, Int. Arbitra. tions, I, 449, 458.)
See the opinion of Mr. Pinkney, commissioner, July 1, 1797, case of the Betsey, Furlong, master; commission under Article VII, treaty between the United States and Great Britain, November 19, 1794, as to whether the commission, according to the treaty establishing it, was bound by the decision of the Lords Commissioners of Appeal affirming a sentence of condemnation by the ViceAdmiralty of Bermuda. Moore, Int. Arbitrations, III, 3180. In the course of his opinion Mr. Pinkney said: "Are we, then, to uphold an interpretation of this instrument which is not only unauthorized by its language, but is unsuitable to the subject of it, and at variance with the undoubted rights of one party and the duties of the other? What Great Britain could not properly demand, we are to suppose she did demand, what the United States ought to have insisted upon, we are to suppose they abandoned, and this is to be done not only without evi. dence, but in direct contradiction to the declarations of the parties.” (Id., 32033204.)
Again, it is usually held that if the general purposes of a treaty conflict with the literal signification of any of its terms, the former should prevail.12 Frequently, in such cases, there is evidence that at least one of the parties is far from assenting to the literal sense of the expressions employed. The situation thus becomes one where the fact of assent is capable of proof.
When the sense in which the parties have used the terms of their agreement is ascertained, the legal effect of the terms employed is a problem for the solution of which the courts turn to the law of nations. Thus, for example, when an umpire concludes that the “ claims" for which a contracting state assumes liability in a proto col of agreement refer to those which are just according to inter
See opinion of Sir Edward Thornton, umpire in the case of Don Rafael Aguirre v. The United States, No. 131: Convention between the United States and Mexico of July 4, 1868, as to the scope of the release given the United States by Mexico in Article II of the Gadsden treaty of December 30, 1853. (Moore, Int. Arbitra. tions, III, 2444.)
See also Mr. Ralston, umpire in the Samibiaggio Case, Italian-Venezuelan Claims Commission, under protocol of February 13, 1903, Ralston's Reports, 666, 688.
See the opinion of Pinkney, commissioner, case of the Betsey, Furlong, master, commission under Article VII, treaty between the United States and Great Britain of November 19, 1794, concerning the power of the arbitrators under the treaty to determine their own jurisdiction. (Moore, Int. Arbitrations, III, 2291; also opinion of the same commissioner in the case of the Sally, Hayes, master, id., III, 2306.)
12 Note the respective contentions of the United States and Great Britain concerning Article I, treaty of June 15, 1846, providing for the San Juan water boundary, and the award of the arbitrator, William I, German Emperor, under Articles XXXIV-XLII, treaty of May 8, 1871. (Moore, Int. Arbitrations, I, 213214, 219–221, 229-231.) Crandall, Treaties, Their Making and Enforcement, 224.
See also the frequently cited case of the interpretation of Article IX of the treaty of Utrecht of 1713, between Great Britain and France, providing for the destruction of the port and fortifications at Dunkirk, given by Phillimore, II, $ 73, and Hall (5th ed.), 339.
Note also interpretation of Article 1 of the convention of September 10, 1857, between the United States and New Granada by Mr. Upham, umpire of the United States and New Granada Joint Commission, as to the presentation of and liability for riot claims. (Moore, Int. Arbitrations, II, 1375–1378.)
national law, it then becomes his duty to ascertain what claims are valid according to that law.18
THE MOST-FAVORED-NATION CLAUSE
It is frequently provided in treaties that the citizens or subjects of the contracting states may enjoy the privileges accorded by either party to those of the most favored nation.14
Writes Professor Moore:
The general design of the most-favored-nation clauses, as they are expressed in various treaties, is to establish the principle of equality of treatment.
The test of whether this principle is violated by the concession of advantages to a particular nation, is not the form in which such concession is made, but the condition on which it is granted. The question is whether it is given for a price, and whether this price is in the nature of a substantial equivalent, and not of a mere evasion. 15
The United States has always taken the stand that reciprocal commercial concessions are not gratuitous privileges, but given for a valuable consideration, and therefore not within the scope of the most-favored-nation clause 16
13 Mr. Ralston, umpire in Sambiaggio Case, Italian-Venezeulan Claims Com. mission, 1903, and Plumley, umpire in Aroa Mines Case, British-Venezuelan Claims Commission, 1903. Ralston's Reports, 679 and 344, respectively.
14 See, for example, Article I, treaty between the United States and Japan, November 22, 1894; Treaties in Force, 1904, 474.
16 Hon. J. B. Moore, “Opinion Upon the Question Whether Congress Can Pass a Special Tariff Act for Cuba, Without Violating the Most-Favored-Nation Clause in Treaties with Other Countries.” January 14, 1902, p. 4, citing opinion of Mr. Olney, Attorney-General, 21 Op. Attys.-Gen., 80, 82, 83.
16 See correspondence between Mr. Adams, Secretary of State, and the French Minister, Mr. Hyde de Neuville, in the course of which Mr. Adams, in a communication December 23, 1817, said: “The eighth article of the treaty of cession stipulates that the ships of France shall be treated upon the footing of the mostfavored nations in the ports of the ceded territory; but it does not say, and can not be understood to mean, that France should enjoy as a free gift that which is conceded to other nations for a full equivalent.” Am. St. Papers, For. Rel., V, 162, 153, 163, 165, 171, 180, 186, 192.
See also Mr. Sherman, Secretary of State, to Mr. Buchanan, Minister to Argentine Republic, No. 303, January 11, 1898, and No. 336, April 9, 1898, MS. Inst. Arg. Rep., XVII, 306, 337; Moore Int. Law Dig., V, 277; Mr. Adee, Acting Secretary of State, to Russian Chargé d'Affaires ad interim, July 30, 1895, U. S. For. Rel., 1895, II, 1121; Moore, Int. Law Dig., V, 276. For further diplomatic