Mr. Strobel to Mr.
Olney.
Legation of the United States,
Santiago, April 23, 1896.
(Received June 2.)
No. 81.]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.
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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.,
[Inclosure 1 in No. 81.—From Diario
Oficial, March 14, 1896.—Translation.]
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.
Diego Armstrong, Secretary.
[Inclosure 2 in No.
81.—Translation.]
Messrs. Janssen and St.
John to the Minister of Foreign
Relations.
Santiago, February —,
1896.
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.
[Inclosure 3 in No.
81.—Translation.]
Mr. Aldunate to
the Minister of Foreign
Relations.
Santiago, February 13,
1896.
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.,
[Inclosure 4 in No.
81.—Translation.]
Messrs. Janssen and St.
John to Mr. Aldunate.
Santiago, February 3,
1896.
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.
[Inclosure 5 in No.
81.—Translation.]
Mr. Aldunate to
Messrs. Janssen and St.
John.
Viña del Mar, February 5, 1896.
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.,
[Inclosure 6 in No.
81.—Translation.]
Messrs. Janssen and St.
John to Mr. Aldunate.
Santiago, February 6,
1896.
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
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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.
[Inclosure 7 in No.
81.—Translation.]
Mr. Aldunate to
Messrs. Janssen and St.
John.
Viña del Mar, February 7, 1896.
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.,
