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.
[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.
Done at Port au
Prince, June 12, 1925.
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
Port au Prince, October 5, 1925.
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]
