Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1896, and the Annual Report of the Secretary of State
Mr. Strobel to Mr. Olney.
Santiago , April 23, 1896 . (Received June 2.)
Sir: Referring to my No. 80 of this date, reporting the results to the Anglo-Chilean tribunal of arbitration, I have the honor to inclose copy and translation of the correspondence between the Belgian arbitrator, M. Camille Janssen, president of the tribunal, and the British arbitrator, Mr. Alfred St. John, on the one hand, and the Chilean arbitrator, Señor Luis Aldunate, on the other, regarding the refusal of the Chilean arbitrator to sign the decision of the tribunal in the case of the bark Chépica and other similar cases. This correspondence is preceded by communications on the subject addressed by both sides to the minister of foreign relations of Chile. Copies and translations of these communications are also inclosed.
The claim mentioned—one of a class of twelve, to which the same principles applied—was for the detention, in consequence of a decree of President Balmaceda, at Valparaiso and Coquimbo, of the bark Chépica, bound for Tocopilla, a port in possession of the revolutionists.
The majority of the tribunal—the Belgian and British arbitrators—declared that the tribunal had no jurisdiction, for two reasons: First, because the detention, being the result of an administrative decree, could not be regarded as a claim based upon acts of the land or sea forces of the Republic during the civil war, as provided for by article 1 of the convention of September 26, 1893, under which the tribunal was established; second, because the claims for indemnity for detention of vessels, caused by the general closing of the ports, and the method to be employed for fixing the amount of such indemnities, are already provided for by article 17 of the treaty of amity, commerce, and navigation of October 4, 1854, between Great Britain and Chile, which is still in force.
[Page 38]A copy and translation of the decision giving both of the above grounds for the declaration of want of jurisdiction are inclosed.
The Chilean arbitrator, Señor Luis Aldunate, agreed with the majority upon the first reason for want of jurisdiction, but not upon the second.
As will be seen by the inclosed correspondence, although by article 5 of the treaty of arbitration, which is in precisely the same form as the Franco-Chilean convention, forwarded to the Department with my No. 47 of October 24 last, the decisions must be signed by all the members of the tribunal, the Chilean arbitrator refused to sign unless his dissenting opinion was embodied in the decision. The Belgian and British arbitrators claim that by the terms of the convention the decisions of the majority of the tribunal must be signed by all its members, and that a dissenting opinion is quite independent of the award.
* * * * * * *
On the ground that the decision was not signed by all the members of the tribunal, the Chilean agent refused to accept notification. * * *
I have thought it worth while to forward the accompanying documents to the Department as giving the details of a somewhat curious incident in international arbitration.
I have, etc.,
Decision of Belgian and British arbitrators on claim of bark “Chépica.”
I. Considering that the convention of arbitration of September 26, 1893, only submits to the jurisdiction of this tribunal “claims based upon acts or operations executed by the land and sea forces of the Republic during the civil war which began on January 7, 1891, and ended on August 28 of the same year;”
Considering that the refusal on the part of the authorities of the port of Valparaiso to permit the bark Chépica to set sail for Tocopilla on March 7, 1891, because the latter port was at that time occupied by revolutionary forces does not partake of the character of an act executed by the land forces of the Republic, but an act of the de jure Government of the country executed in accordance with law; that article 7 of the act of December 26, 1872, authorizes the President of the Republic “to close temporarily one or more ports to commerce whenever extraordinary circumstances require it;” that such a measure dictated as a measure of urgency when the forces of the Congressional party occupied the ports of the north was ratified by supreme decree dated April 1, 1891, which declared the eight first-class ports of the north, from Chanaral to Pisagua, as well as the intermediate habors, closed to commerce; that the fact that this measure, which, from the point of view of an internal public law, is entirely legal, had been taken by the de jure Government of the country during the civil war, is not sufficient to give it the character of an act executed by the land forces of the Republic against the bark Chépica;
II. Considering that article 17 of the treaty of amity, commerce, and navigation, concluded on October 4, 1854, between Chile and Great Britain, stipulates that whenever in case of war, and when the interests of the State are so seriously affected as to necessitate such action, one of the contracting parties shall decree the general embargo or closing of ports, merchant vessels can only claim certain stipulated indemnities if the detention or closing exceeds the period of six days; that by this clause Great Britain recognizes that the Chilean Government has the right to detain vessels and to close ports in case of war, but on condition of granting certain indemnities; that the claim being based upon measures taken in time of war, we must examine whether this tribunal has jurisdiction to apply the provisions of the treaty of October 4, 1854, to the case in question, since, by the very terms of the convention, it must observe the rules of international law, which comprises the general law of nations and the special law of nations established by treaties (A. Merignhac, Traité Théorique et Pratique de l’Arbitrage International, Paris, 1895, p. 289; Calvo, Le Droit International Théorique et Pratique, Vol. III, p. 1768);
Considering that the measure taken by the Government of President Balmaceda regarding the bark Chépica, destined to a port in the north of Chile, is invested with the character of a ruler’s decree (arrêt de prince), which is but one of the forms of embargo, as is admitted by the agent of the Chilean Government (Calvo, Le Droit [Page 39] International, Vol. III, p. 1277;. Carlos Testa, Le Droit Public International Maritime, Paris, 1886, p. 128); that if the Government has the right in time of war, in the interest of its own defense, to detain neutral vessels in its ports, and refuses them authorization to proceed to certain ports which are declared closed, the exercise of this right not only involves its moral responsibility, but also its real responsibility, whenever the case has been provided for in an international treaty, a circumstance which exists in the present case; that otherwise there would result, at least as regards vessels which are in ports of the country that are not closed and destined for ports which are closed, the establishment of a paper blockade prohibited by modern international law;
Considering besides that the decree of April 1, 1891, promulgated by President Balmaceda, and placing upon a regular basis the measures of urgeney which had already been taken, declares that the eight first-class ports situated between Chanaral and Pisagua, as well as the intermediate harbors, are closed to commerce; that as this measure, which is applicable to an extended coast, and to all vessels without distinction of nationality which may be anchored in the ports still in possession of the Government, may be considered as a general closure of the ports provided for by article 17 of the treaty of 1854; that a belligerent can not without exposing himself to responsibility, especially when the measure is provided for in the treaties concluded by such belligerent, declare one or several ports over which he has lost all control to be closed pending the duration of a war, except on the condition of employing force to prevent access to them, and for imposing in this way an effective blockade, “In the case where a revolution or civil war breaks out in a country,” says Lord John Russell, quoted by Hall, “the Government can not declare ports which are in possession of the insurgents to be closed, and such a measure would be a violation of the laws of blockade” (W. E. Hall, A Treatise on International Law, Oxford, 1890, p. 37, Note X; De Holtzendorff, Elements de Droit International Public, p. 75);
Considering that if the measure taken by President Balmaceda in reference to the bark Chépica falls under article 17 of the treaty of 1854, which regulates the question of indemnity in case of embargo or general closing of ports, the same article provides for the appointment of special arbitrators whose duty it is, in case of disagreement, to fix the amount of indemnities, and that consequently this tribunal has no jurisdiction to give a decision in this case.
For these reasons the tribunal of arbitration unanimously declares that it has no jurisdiction to decide the present case, the Chilean arbitrator having declared that he does not accept, for the reasons stated in his dissenting opinion, the second ground upon which the tribunal declares itself without jurisdiction.
Santiago, December 12, 1895.
Camille Janssen,
Alfred St. John.
The undersigned, arbitrators of Belgium and Great Britain, declare that having requested the Chilean arbitrator to sign the preceding award in conformity with article 5 of the convention, he has formally refused to do so.
Santiago, February 8, 1896.
Camille Janssen.
Alfred St. John.
On February 23, 1896, I notified the British agent.
Frederick Kerr.
Diego Armstrong, Secretary.
On March 3, 1896, on notifying the agent of Chile, he declared that he did not accept the notification, because, in accordance with paragraph 3, article 5, of the convention of September 26, 1893, he did not consider anything a decision which did not bear the signatures of the three arbitrators. He refused to sign.
Messrs. Janssen and St. John to the Minister of Foreign Relations.
Mr. Minister: We believe it to be our duty to inform your excellency that Señor Luis Aldunate, a member of the Anglo-Chilean tribunal of arbitration, which is at present sitting in this capital, has refused to sign the decision given on the 12th of last December, in claim No. 76, bark Chépica, a decision in which the tribunal unanimously declared itself without jurisdiction to take cognizance of this claim.
Señor Aldunate accepts the declaration of want of jurisdiction, but dissents from the majority upon some of the grounds upon which the said declaration is based.
The Chilean arbitrator likewise refuses to sign the decisions given in the claims Nos. 75, 77, 79, 81, 85, 88,89, 91, 92, 93, and 94.
[Page 40]Article 5 of the convention of September 26, 1893, expressly prescribes that the awards shall be signed by all the members of the tribunal. This, in our opinion, logically implies that the minority is obliged to sign the decisions, even when the minority may differ from the opinion of the majority; otherwise the result would be that the caprice of a minority might make every sentence null and void.
Besides, such has been the understanding of all tribunals of arbitration of late years. Our view is not only shared by authors of special treatises on the subject, but is likewise embodied in article 23 of the “Proposed rules of procedure for international arbitration” submitted by the Institute of International Law, which says that the award shall be signed by all the members of the tribunal of arbitration. If the minority should refuse to sign, the signature of the majority shall be regarded as sufficient, with the addition of a written declaration that the minority has refused to sign.
We have thought it proper to communicate the above to your excellency, because we consider that the convention of September 26, 1893, has not been respected by the Chilean arbitrator, and for the purpose of informing your excellency of the reason why the signature of the said arbitrator is not at the foot of the decisions, the notification and publication of which we are about to order.
We reiterate, etc.,
- Camille Janssen.
- Alfred St. John.
To the Minister of Foreign Relations.
Mr. Aldunate to the Minister of Foreign Relations.
Mr. Minister: The undersigned has taken cognizance of the official note addressed to your excellency by the arbitrators of Belgium and Great Britain to the effect that I refused to sign in disregard of the provision of article 5 of the convention of September 26, 1893, the award made in claim No. 76 and other similar claims.
As it would be painful for me to characterize the facts stated in that communication, I prefer that your excellency should arrive at conclusions regarding their exactitude after an examination of the documents which I inclose.
From these documents you will conclude that I never refused to sign these decisions, but that I insisted in the first place that there should be inserted in them the special reasons which induced the undersigned to admit the declaration of want of jurisdiction by the tribunal, but which based that declaration on reasons entirely different from those accepted by the majority.
When my first request was rejected by the arbitrators of Belgium and Great Britain I limited myself to insisting that they should insert at the end of the said decision the reservation in the form submitted in the accompanying document, marked No. 1. This new request received a similar and unexpected rejection which will make your excellency reflect upon the propriety with which my honorable colleagues have cited the proposed rules of procedure of the Institute of International Law.
Furthermore, the undersigned has nothing to add to the reasons explained in the dissenting opinion which I likewise inclose, and which I have given in the case of the bark Chépica, and is applicable to other similar claims.
The reading of this last document will perhaps prove to you that reasons have not been wanting to the Chilean arbitrator for considering that the decision made by the majority of his honorable colleagues in this claim are open to be interpreted as the basis of a diplomatic negotiation rather than as an award of arbitrators.
I avail myself, etc.,
Messrs. Janssen and St. John to Mr. Aldunate.
Sir and Esteemed Colleague: We beg of you to be good enough to add your signature to the decision delivered in the claim of the Chépica and other claims for the detention of British vessels, which have been drawn up since the middle of last December.
These claims were decided on the 12th of December, and it is urgent that the agents of both Governments be notified of the decision.
We are, etc.,
- Camille Janssen.
- Alfred St. John.
Mr. Aldunate to Messrs. Janssen and St. John.
Esteemed Colleagues: In your official favor of the 3d instant you invite me to sign the decisions delivered in the case of the bark Chépica and other similar cases. You remind me that the above decision was delivered on the 12th of last December, and that it is urgent that the parties interested be notified.
I was not aware of the date of this decision drawn up without my concurrence. Neither am I able to realize the urgency which you attribute to the notification. In any case, however, allow me to point out that I am in no way responsible for the least delay in bringing this matter to a conclusion.
Though concurring with you as to the declaration of want of jurisdiction, I felt obliged to dissent radically from your esteemed opinion as to the grounds for our joint decision. It was incumbent upon me, therefore, to prepare a statement of the grounds of my opinion. I had hoped that you would not have objected to embodying in the text of our joint decision the special reasons which influenced me. You declined to allow me the honor of signing a decision which contained the expression of my own reasons, notwithstanding the fact that they only affected my own responsibility.
Thus I found myself obliged to embody these reasons in a special and separate opinion, as in the case of an ordinary disagreement in which we had arrived at opposite decisions.
Under these circumstances I proposed unofficially to solve the difficulty by drafting the decision in the following terms:
“On the above grounds the Belgian and British arbitrators declare that they have no jurisdiction to take cognizance of these claims.
“The Chilean arbitrator also concurs in the decision, but on different grounds, which follow in a special and separate opinion, which must be regarded as a component part of the decision.”
The secretary of the tribunal has informed me privately that you do not accept this wording; and, as far as I understand, the communication with which you have honored me has for its object the eliciting of an express statement which may serve as a preliminary to the steps which you may adopt in this case.
With the view of meeting your wishes, I find myself under the unavoidable necessity of declaring that I can not sign the decisions to which your present communication refers if you insist on denying me the right of inserting at the conclusion of these decisions the reservation which I have proposed.
Trusting that this explicit declaration may fulfill the purpose of your communication of the 3d instant,
I am, etc.,
Messrs. Janssen and St. John to Mr. Aldunate.
Esteemed Sir and Colleague: Your favor of the 5th instant informs us that you consider yourself unable to sign the decisions to which our former communication refers unless the reservation is inserted at the conclusion of the said decisions in the form stated in your letter.
We regard it as absolutely indisputable that a dissenting opinion can not be a component part of a decision, although from the point of view of its author it may be a rectification of the principles on which the decision of the tribunal is based. As the dissenting opinion is the expression of the views of the minority, there is no room for such expression, because it has been rejected by the majority and entirely eliminated from the terms of the award.
With this consideration in view we feel strongly the impossibility of agreeing to the introduction into the awards which are the result of the accord of the majority of anything calculated to weaken the aim and purpose which prompted them.
In order, however, to meet the wishes of our esteemed colleague as far as possible, we do not make the slightest objection to the embodiment in the decision of the reservation before us, providing that its last part, instead of reading “that it shall be regarded as a component part of the decision,” shall read “that it shall be regarded as an annexed part” (or words to that effect) “of the dicision.” In this way the principles set forth by us are saved, while the decision can neither appear nor be [Page 42] published without the expression of the views which you have supported at the meetings of the tribunal and which were overruled by the majority.
Trusting that you will recognize the sincerity of our motives in being unable to defer altogether to your wishes,
We remain, etc.,
- Camille Janssen.
- Alfred St. John.
Mr. Aldunate to Messrs. Janssen and St. John.
Esteemed Colleagues: I regret that in your opinion it should be absolutely indisputable that the dissenting opinions given by the minority of a tribunal do not form a part of the decision.
I hold the contrary proposition to be indisputable and elementary, notwithstanding the consideration which an opinion so weighty as yours deserves at my hands.
To make up the entirety of a decision, it is indispensable that all parts of the tribunal should be represented, that is to say, the opinions both of the majority and of the minority into which a tribunal may be divided. The one is a complement of the other; for without the appearance of both there is no decision.
If the opinions of the minority of a joint tribunal should not, as you maintain, be a part of the decisions, it is clear that they might be omitted altogether. It would follow therefore that you, forming a majority, would have the power to give valid decisions as regards all claims submitted to the tribunal, without any participation in them by me. Another and a very different rule is that prescribed by clause 3 of article 5 of the convention of September 26, 1893.
Permit me to invite your very special attention to the clause cited above which provides that decisions can not take effect legally unless they have been signed by all the members of the tribunal.
It is superfluous to add that the significance of a decision is determined incontestably by the opinions of the majority. The first principle of every resolution of bodies acting conjointly should to a great extent serve to dispel the apprehensions you appear to entertain that the weight of their decisions might be impaired or destroyed by a dissenting opinion. Inasmuch as the dissenting opinion renders the decision complete or entire it can not surely weaken or impair its purpose.
Considering this discussion as at an end,
I remain, etc.,