438.00/352

The High Commissioner in Haiti (Russell) to the Secretary of State

No. 628

Sir: I have the honor to forward herewith, for the Department’s information, a copy and translation of Agreements entered into between the Republic of Haiti and the Republic of France, under dates of August 11, 1923,20 and June 12, 1925,21 as well as a translation of a note of transmittal from the Secretary of State for Foreign Relations22 and Mr. George R. Merrell’s reply thereto.23

After careful consideration, I have addressed a note to the Secretary of State for Foreign Relations on this subject, copy attached. It is my understanding that the Department of State has arranged with the Governments of Great Britain, France, Italy and Germany, that during the consideration of their respective claims the Financial Adviser will appoint, as the third member of the Claims Commission, a person selected by the Government concerned.

It is further my understanding that the French Government, through its Embassy in Washington, has agreed to submit all French claims originating prior to May 3, 1916, to the Claims Commission [Page 414] with the proviso that either the French or Haitian Government has the right to appeal from the decision of the Claims Commission to the Arbitral Tribunal in the case of French claims originating prior to September 10, 1913, and furthermore that claims originating after May 3, 1916, may be submitted to the Arbitral Tribunal in accordance with the Franco-Haitian Agreement of September 10, 1913.24

The question arises as to whether all verifications by the Claims Commission of obligations, in any manner other than by the Treaty,25 is not a direct violation of Article VII of the Treaty—a violation that might harmfully affect the security of the Loan. Where claims have been disallowed in whole or in part by the Claims Commission and then allowed on appeal, Haiti’s outstanding obligations are effectively increased by extra-Treaty machinery and the bondholders might have substantial grounds for protest that Haiti’s credit is being jeopardized thereby, and that that was not reasonably within the contemplation of those who advanced the money to place Haiti on a sound financial basis.

Apart from the question of conflict with the terms of the Treaty of 1915 and the Protocol of 1919,26 the enclosed Agreements have not been placed before the Council of State, or published in the Moniteur, and it is therefore, my opinion that they are entirely ineffective.

I have [etc.]

John H. Russell
[Enclosure 1—Translation]

Franco-Haitian Claims Agreement, Signed June 12, 1925

The Undersigned:

His Excellency Mr. Leon Dejean, Secretary of State for Foreign Relations of the Republic of Haiti,

His Excellency, Mr. Gaston Velten, Envoy Extraordinary and Minister Plenipotentiary of the French Republic,

Duly authorized by their respective Governments,

Have agreed to modify as follows the Accord signed August 11, 1923, for the settlement of French claims by the Claims Commission, it being understood that until the present Accord has been ratified by the French Government, the Accord of August 11, 1923, will remain in force.

I

All claims of French nationals or protegees based on facts prior to May 3, 1916, will be submitted, whether officially by the Legation of France or such person as may be designated for that purpose, or by the interested parties themselves or their duly authorized representatives, [Page 415] to the Claims Commission constituted by Article 2 of the Protocol signed October 3, 1919, between the Haitian Government and the Government of the United States.

The claims presented up to the date of May 3, 1916, by the Legation of France to the Haitian Government, in the name of Turkish subjects or those enjoying Turkish nationality prior to the War of 1914–1918, shall likewise be turned over to the aforesaid Commission constituted as hereinbefore indicated. The individuals appearing in list A hereto annexed27 are recognized as enjoying such protection. Those whose names may have been omitted by mistake will have the right to receive from the Legation of France, at any stage of the proceedings, a certificate of protection.

During the period while these claims are being examined, the third member of the commission will be designated, on the nomination of the French Government, and appointed like the others by the President of Haiti.

II

The Haitian Government, and the French Government reserve the absolute right to submit, if there is need, to an arbitral tribunal constituted in conformity with the Franco-Haitian Convention of September 10, 1913, the claims prior to September 10, 1913, enumerated in the list (list B), the settlement of which by the Claims Commission does not appear to them to be satisfactory.

In that which concerns claims after 1913, the French Government reserves the absolute right to have recourse through diplomatic channels, in order to secure the revision of sentences which may not have been unanimous, or which may have been made subject to reservations on the part of one of the members of the Commission.

The Haitian Government shall have the same right in case of the reserve of the Haitian member in the manner and under the conditions hereinbefore expressed.

III

Whenever there is need for revision of sentences rendered on claims prior to 1913, the notification of the declaration of appeal must be sent, either by the Haitian Government to the Legation of France in Port au Prince, or by the Legation of France in Port au Prince to the Department of Foreign Relations within a period of six months beginning from the notifications of the sentence.

The Government which should not have appealed within this period should be considered as accepting the decision of the Claims Commission.

[Page 416]

The acceptance by the claimants of the certificate of payment and the payment by the State of the indemnity allowed by the Claims Commission will be effective for the two Governments as a renunciation of the right of appeal.

IV

The two Governments undertake to designate their respective representatives to the arbitral tribunal of appeal within three months following the closing of the examination of the French claims. This tribunal will be convened after agreement between the Secretary of State of Foreign Relations of Haiti and the Minister of France at Port au Prince, when these two deem the number of appeal cases sufficient, and at the latest six months after closing of the examination by the Commission, of the claims of French citizens and protegees.

V

The procedure to be followed by the Claims Commission for the examination of claims of French nationals or protegees remains that fixed by Article 4 of the Protocol of October 3, 1919, completed by the regulations of the commission of February 6, April 14, and August 21, 1923, insofar as these regulations are not in conflict with the present Accord.

VI

The procedure to be followed by the arbitral tribunal of appeal is fixed by Articles 3, 4, 5, 6, and 7 of the Franco-Haitian Convention of September 10, 1913.

VII

The fees incurred by the constitution and operation of the arbitral tribunal of appeal will be borne in equal shares by the two governments.

VIII

The (Haitian) Government engages itself to carry out the sentences rendered by the arbitral tribunal of appeal in the conditions prescribed by Article 5 of the Protocol of October 3, 1919, in payment of the amount of the claims accepted by the Claims Commission, after the same delays.

IX

As to the French claims already settled in principal, after regular procedure, they will not be subjected to any revision.

[Page 417]

These are the following settled by the arbitral tribunal:

(a)
Lasalle (Gaston), awarded in the sum of 3,000 dollars;
(b)
Barthe (Justin), awarded in the sum of 1,100 dollars;
(c)
Clovis (Auguste), rejected.

The claim of Semexant Rouzier, provided for in the Accord of August 11, 1923, has already been settled.

X

It is necessary to increase the amount of the claims mentioned in the preceding article by interest at six per cent per year from the date of the sentence, in conformity with paragraph 2 of Article 8 of the Franco-Haitian Convention of September 10, 1913, and on account of the diplomatic character of these debts, no prescription can be presented against the claimants.

XI

From the time when the French member shall take his place on the Claims Commission, the latter will keep in the files of the respective awards in the office of its secretary, whether at the diligence of the French legation or of the claimants, or at that of the Haitian government, the certificates of payment respecting the claims provided for in Article 9. These certificates of payment will be immediately satisfied by the Haitian Government, under the conditions and according to the method agreed upon in the Protocol of October 3, 1919, and through the decision of the Claims Commission, which must bind itself to fix the amount of interest due since the date of the Original sentence until its award, and to indicate the proportion of bonds and of money due each claimant.

XII

In order to avoid all loss of time and useless expense to the Haitian Government, it is agreed that the claims of French citizens or protegees, which may give rise to hearings outside of Port au Prince, may be called for hearing by the present composition of the Claims Commission, and without waiting for the French session, along with all other cases which necessitate the transfer of the commission. In addition, it remains well understood that the Commission as now constituted must bind itself to proceed with hearings deemed necessary, and that the final sentences will not be rendered until the French member sits, in such manner as not to bring any prejudice to the rights of French citizens and protegees as are determined by the present Accord, subject to the claimants’ acceptance, formally and in writing, of the present composition of the Claims Commission.

[Page 418]

XIII

The Haitian Government engages itself immediately to notify the Claims Commission of the integral text of the present Accord in order to allow it sufficient time for all decisions on this matter.

XIV

Awards made by the Claims Commission on claims submitted by French nationals or protegees outside of the time fixed for the examination of French claims and after they have formally accepted the present composition, are definitive.

XV

The Haitian Government, in conformity with the French Government’s request, agrees that the awards referred to in Article 5 of the Protocol of October 3, 1919, may be issued in the name of the Legation of France, for the account of the claimant.

In consequence, the certificate recording the decision of the Claims Commission will be sent to the French Legation and the payment of the award which shall have been made to it, will serve as a complete and final discharge of the Haitian Government, as well as of the members of the Claims Commission.

The French Government agrees at all times to take into consideration attachments which may have regularly been made against amounts allowed to claimants.

XVI

The French delegate to the Claims Commission will receive from the Haitian Government the pay and allowances prescribed by Article 9 of the Protocol of October 3, 1919, for the period of the examination of the claims of French citizens and protegees and proportionally to the duration of such period.

XVII

The following two French claims, based on facts subsequent to May 3, 1916, will be submitted to the examination of the arbitral tribunal provided for in paragraph 2 hereinabove, a tribunal which will judge in each case in first and final resort, that is to say:

(a)
Claims by Mr. Charles Jean, Assyrian dependent of France, of an indemnity in reparation of damages caused on his property at Maissade during the political troubles in February 1919;
(b)
Claim by Mr. Lavaury (Francois), French, for an indemnity in reparation of damages caused to his dwelling at Port au Prince during political troubles in January 1920.

[Page 419]

In the case where, through failure of requests for revision or for any other reason, the arbitral tribunal provided for in Article 2 hereinabove does not meet, the two governments agree to submit these two claims to the arbitration of a special tribunal constituted under the same conditions and which will meet within the period prescribed in Article IV hereinabove.

The claim of the commercial firm called the Comptoir Francaise, provided for in the Accord of August 11, 1923, has already been paid.


For France:
G. Velten

For the Republic of Haiti:
Léon Dejean
[Enclosure 2]

The American High Commissioner (Russell) to the Haitian Secretary of State for Foreign Affairs (Dejean)29

Excellency: With reference to Your Excellency’s letter of July 27, 1925, addressed to the American Chargé d’Affaires a. i. and transmitting a copy of the Agreement of June 12, 1925, between Your Excellency’s Government and that of the Republic of France, and with reference to Mr. Merrell’s reply of August 11, 1925, in which he had the honor to inform you that the matter would be brought to the attention of my Government and myself, I have the honor to advise Your Excellency that after having carefully read the Agreement, I should like to make the following observations thereon:

I understand that the objects of this Agreement, as well as of the Agreement of August 11, 1923, are, first, that all French claims should be submitted to the Claims Commission and, second, that French claims originating prior to September 10, 1913, might, at the request of either the Haitian or the French Government, be appealed from the decision of the Claims Commission to the Arbitral Tribunal authorized by the Agreement between Haiti and France of September 10, 1913.

Insofar as the Agreements under discussion relate to claims arising after May 3, 1916, they do not appear to be in conflict with the Protocol of October 3, 1919. The following points of conflict with the Protocol, however, should be remarked:

(a)
Article II of the Protocol provides that the third member of the Claims Commission shall be nominated by the Financial Adviser and appointed by the President of Haiti, whereas, the Agreement between Haiti and France purports to give the French Government the [Page 420] right to nominate a third member. It would appear obvious that such an Agreement could not affect the provisions of the Protocol between the United States and Haiti.
(b)
Article V of the recent Agreement recognizes Article IV of the Protocol, but this recognition is qualified by the clause stating that the rules of procedure of the Claims Commission may not conflict with the provisions of the Agreement. Inasmuch as one of the fundamental rules of procedure adopted by the Claims Commission is its authority to fix the time after which claims may not be filed, the French Government might easily question the foreclosure of claims in default, especially if any such claims are presented by those whose names are included in List A.32
(c)
At the end of the second paragraph of Article I of the Agreement of June 12, 1925, it is provided that all the individuals whose names appear on a list attached are admittedly French nationals or protegees, and that the list may be added to at will by France. The question of citizenship or wardship would seem to be one with respect to which it would be peculiarly within the jurisdiction of the Claims Commission to decide, particularly as it is the evident aim of the two Agreements to secure favorable discrimination in favor of French citizens or protegees as distinguished from all others. This provision will be effective to estop the Claims Commission from considering evidence as to nationality.

The provisions of Article VIII of the Agreement would appear to be in conflict with those of Articles V, VI, and VII of the Protocol. The question arises whether Your Excellency’s Government may, by agreement with a government other than that of the United States, obligate funds of the Haitian State derived from the Treaty of September 17 [16], 1915.

With reference to Article X, it would appear that the entire question of interest is a matter for the Claims Commission to determine in rendering its decisions.

The provisions of Articles XI, XV, and XVI seem to be quite in-apropos. The Claims Commission was provided for by the Treaty of 1915 and the Protocol of 1919, entered into between the United States and Haiti, and it does not appear that the functions or powers of this Commission can be altered by an Agreement entered into between Haiti and another nation.

The claims contemplated in Article XVII, not coming under the jurisdiction of the Claims Commission might properly be submitted to an Arbitral Tribunal, but it would seem expedient and appropriate that an endeavor first be made to settle them through the ordinary diplomatic channels.

Finally, it may be stated that the text of the bonds themselves, as well as that of the loan contract, both contain an express provision [Page 421] that the loan is “in pursuance of the Treaty, concluded September 16, 1915, between the Republic of Haiti and the United States of America, as extended by the additional act of March 28, 1917,33 and in conformity with a Protocol executed in pursuance thereto, on October 3, 1919, as modified and confirmed by an exchange of notes between the two governments, dated June 1, 1922, and June 8 [3], 1922, respectively”.34 Article VII of the Protocol provides that the loan will be used to pay or otherwise provide for obligations specifically mentioned and the awards rendered by the Claims Commission provided for in the Protocol. The surplus is then returned to the Government for use in construction of necessary public works and in the service of the loan. It thus appears that there is no authority for the payment from the proceeds of the loan, awards made by virtue of the Haitian-Franco Agreement of June 12, 1925.

Accept [etc.]

[File copy not signed]
  1. Agreement of Aug. 11, 1923, not printed; for correspondence concerning this agreement, see Foreign Relations, 1923, vol. ii, pp. 400411 passim.
  2. Agreement of June 12, 1925, printed as enclosure 1, infra.
  3. Note of July 27, 1925; no copy attached to file.
  4. Not printed.
  5. British and Foreign State Papers, vol. cvii, p. 792.
  6. Treaty of Sept. 16, 1915; Foreign Relations, 1915, p. 449.
  7. Ibid., 1919, vol. ii, p. 347.
  8. There are no lists attached to file copy.
  9. This enclosure was actually transmitted to the Department by the High Commissioner in Haiti with his despatch No. 645, Nov. 3, 1925 (file No. 438.00/356).
  10. A list of French protégés, of actual or former Ottoman nationality, for whom provision was made in art. I of the agreement of June 12, 1925.
  11. Foreign Relations, 1917, p. 807.
  12. See the Department’s instruction No. 2, Apr. 1, 1922, to the High Commissioner in Haiti and the latter’s telegram No. 61, June 3, 1922, to the Department, ibid., 1922, vol. ii, pp. 488 and 496.