As heretofore remarked by me, the judicial method seems the better one for
settling claims. At the time my No. 20 was written, however, I had not had
the opportunity of examining this treaty as critically as I have since done.
If you deem it expedient to settle the claims of our citizens by a mixed
commission, it would be necessary to alter in several respects the form of
those already executed, perhaps. For instance, Article IV of the inclosed
treaty would seem to give the clear right to the commission to pass upon the
question of the nationality of the claimant, and in so doing to go behind
the record and examine into the fact of nationality. This would be in direct
conflict with the position you have assumed in another case.
Again, the treaty provides in Article III for the settlement of all claims by
said commission arising from the outbreak of the war until a treaty of peace
or truce shall be arranged, and in Article VIII it is stipulated that all
claims must be presented within six months after the “first session” of the
commission, and no provision is made for claims which may arise in the
future.
Further, it may appear to you that a better method than that provided of
selecting the third commissioner might be made; and still further, as our
claims are comparatively small in amount, the question of the attendant
expenses might be somewhat differently arranged.
I place the subject before you for such action as you deem proper to take at
the appropriate time.
[Inclosure in No.
74.—Translation.]
Convention concluded November 2, 1882, between Chili and France, to submit to arbitration the
settlement of the French claims, brought on account of the
war.
His Excellency the President of the Republic of Chili, and His Excellency
the President of France, desiring to put a friendly end to the claims
brought by French citizens, and supported by the legation of France in
Chili, in reference to the acts and deeds done by the forces of the
Republic, in the territories and coasts of Peru and Bolivia, during the
present war, have agreed to celebrate a convention of arbitration, and
with this view have nominated for their respective
plenipotentiaries:
His Excellency the President of the Republic of Chili, Señor Luis
Aldunate, minister of foreign affairs of the Republic; and His
Excellency the President of the Republic of France, Señor Adolpho, Baron
d’Avril, minister plenipotentiary of the first class, officer of the
national order of the Legion of Honor, &c.;
[Page 98]
Which plenipotentiaries, after having examined and exchanged their
powers, and found them in good and due form, have agreed upon the
following articles:
Article I.
A tribunal of arbitration or a mixed international commission shall pass
judgment, in the form and according to the terms which this convention
shall establish, upon all the claims resulting from the acts and deeds
done within the territories and coasts of Peru and Bolivia during the
present war, by the land and sea forces of the Republic, which have
already been presented, or which may yet be presented, by French
citizens, through the medium of the legation of France in Chili, within
the terms to be presently indicated.
Article II.
The commission shall consist of three members: one appointed by the
President of the Republic of Chili, another by the President of France,
and the third by His Majesty the Emperor of Brazil, either directly or
by the diplomatic agency of his representative accredited to Chili.
In case of the death, absence, or incapacity from any other cause, of one
or more of the members of the commission, their place or places shall be
filled under the form and conditions expressly provided for in the
preceding paragraph.
Article III.
The mixed commission shall examine and decide the claims which French
citizens Lave so far made, or which they may make through the proper
diplomatic medium, in award of the acts and deeds done by the armies and
fleets of the Republic from February 14, 1879, the date of the breaking
out of hostilities, until the day when a treaty of peace or an agreement
of truce shall be arranged between the belligerent nations, or when
hostilities between the three nations shall cease.
Article IV.
The mixed commission shall receive and subject said claims to such
suitable investigation and inquisition as in the judgment and right
understanding of its members may conduce to the better enlightenment of
the acts to be decided upon, and especially as to the identity of state
and neutral character of the claimant. The commission will also admit
verbal or written allegations of either Government or of their
respective agents or defenders.
Article V.
Each Government shall appoint an agent to watch the interest of his
clients and manage the defense, present petitions, documents, requests,
confirm or attack positions, support his own charges or refute his
opponent’s, render and establish his proofs before the commission in
person or by means of a lawyer, verbally or in writing, according to the
rules of action and procedure which the commission shall appoint at the
beginning of its functions, or to the legal usages, principles, and
precedents which rightly inure to them.
Article VI.
The mixed commission shall decide upon the claims in regard to the merit
of the proof adduced, and in accordance with the principles of
international law, and the practices and rules of jurisprudence
established by analogous modern tribunals of greater authority and
prestige; the final result to be decided by a majority of votes.
The mixed commission will briefly summarize in each final decision the
acts and causes of the claim, the reasons alleged in its support or
confutation, and the foundation in international justice which supports
such decision.
The resolution and decrees of the commission shall be written and signed
by all the members and authenticated by the secretary, and the originals
shall be left with their respective accompaniments in the bureau of
foreign relations of Chili, such translations as may be desired being
given to the parties desiring them.
The commission shall prepare a book in which they shall note their
proceedings, the petitions of the claimants, and the decree and
decisions reached.
The commission shall hold its sessions in Santiago.
Article VII.
The commission shall have the faculty of procuring such secretaries,
translators, and other officials as it deems essential for the
satisfactory execution of its functions. The commission may propose
individuals to fill these offices respectively, and may designate the
remuneration or salary that they shall receive. The appointment of the
said officials shall be made by His Excellency, the President of the
Republic of Chili.
[Page 99]
Such decrees of the mixed commission as are to be fulfilled in Chili
shall have the aid of public authority the same as the ordinary
tribunals of the country. Those which are to be fulfilled abroad shall
conform in rule and use to international law.
Article VIII.
The claims will be presented to the mixed commission within the six
months following the date of the first session, and those presented
later than this will not be permitted. To provide for the effect of the
disposition contained in this article the mixed commission shall publish
in the Diario Oficial of the Republic of Chili a notice of the date of
their installation.
Article IX.
The commission shall have the space of two years, counting from the date
of their installation, in which to discharge their mission in reference
to all the claims submitted to their knowledge and decision. This term
once passed, the commission will have the power to prorogue their
functions for a new term not to exceed six months, if, because of the
sickness or incapacity of any of its members, or for any other reason of
sufficient gravity, they have not finally completed their commission
within the time previously stated.
Article X.
Each of the contracting Governments shall assume the expense of the
proper legal actions and the remuneration of their respective agents or
defenders.
The expenses of the organization of the mixed commission, the
remuneration of its members, the salaries of the secretaries,
translators, and other employés, and the further costs and expenses of
the common service shall be paid by both Governments equally; but if the
amounts shall be decided in favor of the claimants there shall be
deducted from them the said common costs and expenses, provided these do
not exceed 6 per cent. of the amounts to be paid by the treasury of
Chili for the whole of the claims accepted.
The sums which the mixed commission decides in favor of the claimants
shall be paid by the Government of Chili to the Government of France
through its legation in Santiago, or through some person whom the
legation shall appoint, at the end of one year, counting from the date
of its respective decision, without the payment for this term of any
interest in favor of the said claimants.
Article XI.
The high contracting parties bind themselves to consider the judgments of
the mixed commission which this convention organizes as a satisfactory,
perfect, and irrevocable termination of the difficulties whose
settlement they have had in view, and in the understanding that all the
claims of French citizens presented or omitted according to the
conditions stated in the preceding articles, shall be considered
definitely decided and judged, and that for no motive or pretext can
they again be made matter of new discussion or complaint.
Article XII.
The present convention will be ratified by the high contracting parties
and the exchange of such ratifications shall take place in Santiago.
In testimony whereof, we, the plenipotentiaries of the Republic of Chili
and of the Republic of France, have signed the present convention in
duplicate, and in the Spanish and French languages, and have sealed it
with our respective seals.
Done in Santiago de
Chili, on the second day of the month of November, in
the year of our Lord the one thousand eight hundred and
eighty-second.
[
l. s.]
LUIS
ALDUNATE.
[
l. s.]
A.
D’AVRIL.
