File No. 437.00/43.
[Inclosure.—Joint note and draft
agreement.—Translations from the French.]
The British, French and German
Ministers to Cuba to the Cuban
Secretary of State.
The Governments of Germany, France and Great Britain have carefully
examined the reply of the Cuban Government under date of Feburary
28, 1912, to their note of November 7, 1911.
As the Cuban Government tentatively accepts arbitration for the
settlement of the indemnities claimed by the citizens and subjects
of the three countries, the claimant powers have the honor to renew
their propositions of November 7, 1911.
Those propositions were to the effect that a court of arbitration
should first determine the question whether the Cuban Government is
liable for the injuries caused, and, if it is, then that the claims
should subsequently be adjusted by a mixed commission sitting in
Cuba.
A draft agreement to arbitrate, worked out on this basis, is
therefore appended to the present note and submitted to the
acceptance of the Cuban Government.
As the first part of the proposed procedure does not involve any
examination of individual claims, there appears to be no object in
discussing the classification of the claims as suggested by the
Cuban Government. It will be permissible for the claimants whose
demands appear acceptable to the Cuban Government to adjust them
with the latter by all means possible until the court of arbitration
provided for in the agreement to arbitrate has settled the question
whether Cuba is or is not liable in law for the injuries caused.
After that date all unsettled claims for indemnity will be withdrawn
by the interested Governments if the court should decide that the
Cuban Government is not liable.
In the contrary event they will be submitted to the mixed commission
provided for in article 11.
The Governments of Germany, France and Great Britain desire to remark
again that their position is based upon a spirit of sincere
conciliation and on the sole desire to terminate the controversy by
the means which are the most acceptable to both parties. In signing
the agreement to arbitrate proposed to it the Cuban Government does
not recognize in advance either the validity or the wellfoundedness
of the claims which have been submitted to it. It undertakes solely
to have decided by arbitration, in concert with the claimant powers,
the question as to whether it is liable or not.
Between the Governments of Germany, France, and Great Britain on the
one hand, and the Government of Cuba on the other, a disagreement
has arisen as to whether the Republic of Cuba is bound to repair the
injuries caused by the
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Cubans to German, French and British subjects during the war of
independence. The dispute has not been settled by diplomatic
means.
According to article 38, paragraph 2, of The Hague Convention for the
peaceful settlement of international controversies, of October 18,
1907, the said Governments have decided to resort to arbitration in
this dispute and have concluded the following Agreement:
Article 1. The question in dispute is the following: Is the Cuban
Republic bound to repair the injuries caused by its regular forces
or by its irregular forces to German, French or British subjects
during the war of independence and before the beginning of the war
between Spain and the United States?
Article 2. The parties are the following: The Governments of Germany,
France and Great Britain on the one hand, and the Government of Cuba
on the other.
Article 3. A court of arbitration, organized as hereinafter
described, shall be instructed to render a final decision on the
question in dispute (article 1).
Article 4. The court of arbitration shall be composed of three
arbitrators chosen from among the members of the permanent court of
arbitration of The Hague.
Each party shall choose an arbitrator as soon as possible and within
a period not to exceed two months from the date of signature of the
present agreement. The two arbitrators thus chosen shall choose an
umpire. If within a period of one month from the date upon which
they have been notified of their designation they have been unable
to agree upon the choice of an umpire, the designation of the latter
shall be intrusted to His Majesty the King of Norway.
Article 5. On_ _ _ _ _ _ the German, French and British Governments
shall deliver to the Bureau of the Permanent Court at The Hague
sixteen copies of their common argument, and the Cuban Government
shall deliver to it twenty-four copies of its argument. The Bureau
shall without delay attend to transmitting to the arbitrators and
the parties, three copies of both arguments to each arbitrator, four
copies of the Cuban argument to each of the three European
Governments, and four copies of the argument of the latter
Governments to the Cuban Government. Besides, three copies of each
argument shall be kept in the Bureau for the files.
On_ _ _ _ _ _ the parties shall deposit, in the same manner, their
counterarguments and final conclusions.
Article 6. Each party shall deposit in the International Bureau by
May 1, 1913, at the latest, the sum of 1000 Dutch florins as an
advance for the costs of litigation.
Article 7. The court shall convene at The Hague on _ _ _ _ _ _ and it
shall proceed at once to examine the controversy.
Article 8. The parties shall each be represented before the court by
a special agent, whose mission it shall be to act as an intermediary
between them and the court. These agents shall give such
explanations as may be asked of them by the court, and they may
offer such arguments as they may deem suitable for the defense of
their cause.
Article 9. The arguments of the parties (article 5) and the written
decisions of the court will be in French. The members of the court
as well as the agents may use the German, French, English or Spanish
language in their written or oral communications, at their
choice.
Article 10. In all matters not provided for in the present agreement
the stipulations of The Hague Convention of October 18, 1907, shall
be applicable to the present arbitration.
Article 11. If the court answers the disputed question (article 1) in
the affirmative, a mixed commission shall convene in Cuba in order
to pass on each of the indemnity claims. It shall comprise a
representative for each of the four Governments, and an umpire, who
must be the citizen or subject of an uninterested country.
Each claim shall be examined and tried by a subcommission comprising
only the representative of Cuba, the representative of the
interested nation, and the umpire; so that the umpire and the
representative of Cuba will have to pass upon all the claims, and
the representative of each of the other powers only on the claims
filed by the citizens or subjects of that power.
The sums allowed the claimants by the mixed commission shall be
delivered by the Cuban Government to the diplomatic representatives
of the interested Governments at Havana, within a period of one year
from the date of the decision of the mixed commission, and they
shall bear interest at the rate of
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six per cent per annum from the date of the
decision of the court up to that of payment.
Article 12. The two parties shall share in equal moieties the fees
and traveling expenses of the arbitrators and of the umpire as
provided in article 4, as well as the incidental arbitration
expenses contemplated in article 6. The parties shall likewise share
by halves the fees and traveling expenses of the umpire as
contemplated in article 11.
