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I am compelled, therefore, to exclude from consideration the rulings to which you refer, not merely because they do not sustain the position for which they are cited, but because, even if they could be construed as having that effect, they do not in any way bind the Goyernment of the United States, except in those cases in which they were rendered."
Mr. Bayard, Sec. of State, to Mr. Muruaga, Spanish min., Dec. 3, 1886,
The statement that the decisions of international commissions "are not to be regarded as establishing principles of international law" is to be understood only in a very restricted sense. It is no doubt true that where such decisions rest upon special stipulations of treaty inconsistent with international law, and not upon the general principles of law, they are not to be received as expositions of the latter; but where they purport to expound the general principles of law they possess, as do the decisions of other judicial tribunals, an authority commensurate with the dignity of the commission and the reputation and learning of the persons who compose it. Phillimore -pecifies, as one of the sources of international law, "the decisions of international tribunals." (Int. Law, 3rd ed., I. 68.) Likewise Wheaton, who, in discussing the sources of international law, enumerates: "4. The adjudications of international tribunals, such as boards of arbitration and courts of prize." And he pertinently declares that, "as between these two sources of international law greater weight is justly attributable to the judgments of mixed tribunals, appointed by the joint consent of the two nations between whom they are to decide." (Lawrence's Wheaton, 1863, 30.) Oppenheim, one of the most recent of publicists, mentions, among the "causes" of international law, i. e., the factors that "influence the gradual growth of new rules," (as distinguished from "sources" or springs," i. e., "treaties and custom") the decisions of courts and "arbitral awards." (Int. Law, 24.) Citations to the same effect might be greatly multiplied. It would indeed be strange if the judgments of tribunals erected by nations to decide between them upon principles of international law should be destitute of authority as to what those principles are.
By a protocol signed at St. Petersburg August 26 (Sept. 8), 1900, it was agreed to submit to arbitration the claims of the American sealing schooners James Hamilton Lewis, ('. II. White, and Kate and Anna and of the American whaling bark Cape Horn Pigeon, growing out of their seizure and detention by Russian cruisers.
The Russian Government desired to include in the protocol a provision that the arbitrator should, in determining each claim, follow "the general principles of international law and the spirit of inter
H. Doc. 551-vol 7-4
national agreements bearing upon the subject." The United States objected to the phrase "spirit of international agreements bearing upon the subject " as vague and possibly retroactive, and after some discussion proposed to omit the whole passage, thus leaving the entire case to the unreserved judgment of the arbitrator. The Russian Government, however, adhering to the phrase on the ground of a desire to recognize treaties as a source of international law, the whole passage was retained, with the addition of the proviso that it should have "no retroactive force," and that the arbitrator should apply to the cases "the principles of international law and of international agreements which were in force and binding upon the parties to this litigation at the moment when the seizures aforementioned took place."
For. Rel. 1900, 851, 853, 854, 857, 858, 861, 863, 865, 870, 871, 872, 874, 885.
(8) AGENTS AND ATTORNEYS.
Mr. Semple, the chargé d'affaires of the United States to New Granada, was authorized by his Government to appear in its behalf before the commissioners appointed under the treaty between the three states formerly composing the original Republic of Colombia for the purpose of deciding upon the debts due by that Republic. The commissioners intimated a doubt as to his authority to act. With reference to this question the Department of State said: “It is true that you are accredited in a diplomatic capacity to the Government of New Granada only, but as the functions of the board of commissioners were believed to be merely judicial, it was not deemed expedient that the United States should incur the expense or necessary that they should go through the form of sending a special diplomatic agent to Bogotá to advocate the few and inconsiderable demands which were supposed to be within the powers of the board to adjust. It was thought sufficient for you to inform it that you had been directed by your Government to act for that purpose, and it was presumed that if any scruples should be raised as to your powers, an authenticated extract from your instructions would and should be judged adequate to obviate all doubt on that head. When the claims should have been adjusted and the time for payment should have approached, it was considered that it might be necessary for you to be specially empowered by the President to receive and give acquittances for whatever sums of money might have been payable at Bogotá."
Mr. Forsyth, Sec. of State, to Mr. Semple, chargé d'affaires to New
The act establishing the Department of Justice does not prohibit the designation by the President of an advocate on the part of the United States under the agreement with Spain of 1871 organizing the American and Spanish Claims Commission.
Akerman, At. Gen., 1871, 13 Op. 416.
A commission constituted in pursuance of treaty provisions to settle and adjust disputed claims is for that purpose a quasi court, and an agreement to present and prosecute before it a claim at a fixed compensation, or for a reasonable percentage of the amount recovered, is not illegal, immoral, or against public policy.
Wright v. Tebbitts, 91 U. S. 252.
(9) CESSATION OF ARBITRATORS' FUNCTIONS.
According to the public law of the monarchies of Europe, the authority of ministers, and perhaps of international commissioners, expires on the death, deposition, or abdication of the prince; but not so as between the American Republics, in which the executive power is permanent and continuous, without regard to the governing person, and there is no interruption of the authority or renewal of the credentials of their public ministers on a change of President for whatever cause, provided such President continues to represent and exercise the appointing power of the Government.
Cushing, At. Gen., 1855, 7 Op. 582.
The officers of international commissions may be removed by agreement of the contracting powers creating the commission.
Mr. Trescot, Acting Sec. of State, to Lord Lyons, July 31, 1860, MS. Notes to Gr. Brit. VIII. 336.
June 13, 1885, the Honorable William Strong rendered as arbitrator an award against the Government of Hayti in the cases of Pelletier and Lazare, under the protocol between the United States and Hayti of May 24, 1884. Soon after the award was rendered, counsel for Hayti endeavored to obtain from the arbitrator a rehearing of the Lazare case, on the ground of alleged newly discovered evidence, but he declined to grant their application on the ground that, in his judgment, his "power over the award was at an end" when it "had passed from his hands and had been filed in the State Department."
Mr. Strong to Mr. Preston, Haytian min., Feb. 18, 1886, S. Ex. Doc. 64, 49 Cong. 2 sess. 43. It appears that Judge Strong, June 23, 1886, made at the Department of State an oral statement" to the effect that if the documents had been presented to him they would have made a "vast difference" in his award. The United States on
various grounds subsequently refused to ask for the payment of the award. (Moore, Int. Arbitrations, II. 1800–1804.)
By a protocol between the Governments of Italy and Colombia it was agreed to submit to the President of the United States, as arbitrator, all claims of Ernesto Cerruti, an Italian subject, against the Government of Colombia for the loss and damage of his property in the State of Cauca during the political troubles of 1885. The protocol provided that the arbitrator, when he should have qualified himself to enter upon his duties, should "become vested with full power, authority, and jurisdiction to do and perform, and to cause to be done and performed all things without any limitation whatsoever, which in his judgment may be necessary or conducive to the attainment, in a fair and equitable manner, of the end and purposes which this agreement is intended to secure.” The arbitrator was then required to proceed to examine and decide (1) which, if any, of the claimant's demands were "proper for international adjudication," and (2) which, if any, were "proper for adjudication by the territorial courts of Colombia." As to claims of the first class, he was required to determine" the amount of indemnity, if any, which the claimant be entitled to receive from the Government of Colombia through diplomatic action; " while, as to claims of the second class, he was directed, after ascertaining that they belonged in that category, to "take no further action upon
In his award, which bears date March 2, 1897, President Cleveland allowed to the claimant for loss and damage of his individual property and of his interest in the copartnership of E. Cerruti and Company, including interest, the sum of £60,000. The arbitrator, however, then went further, and in the exercise of his "full power, authority, and jurisdiction to do and perform, and to cause to be done and performed, all things, without any limitation whatsoever," which in his judgment might be necessary or conducive to the attainment in a fair and equitable manner of the ends and purposes" which the protocol was intended to secure, declared that, as the Colombian Government had destroyed Cerruti's means of liquidating the debts of the copartnership of E. Cerruti and Company, for which he might be held personally liable, that Government, in order that he might enjoy and be protected in the sum awarded to him, should" guarantee and protect him "against any and all liability on account of the debts of the said copartnership," and should reimburse him to the extent to which he might be obliged to pay such debts, the Colombian Government, on the other hand, being adjudged to be entitled to all rights, legal and equitable, to Cerruti's property in the State of Cauca.
Moore, Int. Arbitrations, II. 2117 et seq.; IV. 4699,
The Colombian legation protested against the award as being invalid and beyond the defined powers of the arbitrator, on the ground (1) that it did not determine and declare any amount of indemnity which the claimant was entitled to receive from Colombia through diplomatic action, (2) that it did not put an end to any subject of disagreement between the two Governments, (3) that it did not constitute a final disposition of any claim submitted, (4) that it imposed on the Government of Colombia an uncertain and undetermined liability, (5) that it provided for the continuance of disagreements which the protocol was designed to end, and (6) that it involved a delegation of the authority of the arbitrator to some persons and tribunals not named in the protocol nor designated in the award, at times and in modes undefined and unauthorized, to ascertain the amounts and conditions of further liability of Colombia to the claimant by reason of the claims submitted to arbitration.
Mr. Rengifo, Colombian chargé, to Mr. Olney, Sec. of State, March 3, 1897,
This protest was adopted by the Colombian Government with the state-
"The President of the United States, whether he be the individual who acted as arbitrator or his successor in office, became, under any circumstances, functus officio, so far as the arbitration was concerned, upon the rendition of his award, and could not undertake to reopen the arbitration and reconsider the award under any just view of the powers conferred upon him as arbitrator by the protocol under which he acted. Should the parties to the arbitration invite the reconsideration of the award in question, in whole or in part, or request its interpretation in any respect, that could only be accomplished by a new submission and arbitration.
"This circumstance precludes me from considering in any way the statements made by you in support of the protest of your Government against the said fifth article of President Cleveland's award. Your note of the 1st instant, as well as the preceding note of March 3, addressed to my predecessor, will be placed on record for convenient reference and the proper effects should a joint request for a new arbitral proceeding be made by the parties to the original arbitration in the manner you foreshadow."
Mr. Sherman, Sec. of State, to Mr. Rengifo, Colombian chargé, May 5, 1897, For. Rel. 1898, 250.
"It is at least possible that the representations of Colombia alone or in conjunction with a joint request from the Governments of Italy