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excluded from the consideration of the tribunal in making its award, even if there were no disagreement between the two governments as to the competency of the tribunal to decide upon them. This declaration was accepted by both Governments.
Moore, Int. Arbitrations, I. 646.
For other precedents as to the power of international commissions to determine their own jurisdiction, see Moore, Int. Arbitrations, II. 1141, 1143, 1241, 1628; III. 2277.
The convention of 1864 with the United States of Colombia confers on the commission thereby created authority to decide the cases which had been presented within the time specified, and which had not been decided by the commission appointed under the convention of 1857, and therefore conferred jurisdiction to determine what cases had been presented to, but not decided by, the old commission.
Speed, At. Gen., 1865, 11 Op. 402.
A proposal having been made by the United States to create a new mixed commission to consider and dispose of the cases which were presented to a previous commission, but were not, for want of time, disposed of finally, the Chilean Government assented, but suggested that a certain claim which was presented to the previous commission should be excluded from the consideration of the new. The United States replied:
"I note the arguments advanced by you in behalf of your suggestion that the North and South American Construction Company's claim should be excluded. These objections were in substance made before the late commission, and were not considered by it sufficient to exclude the case from its jurisdiction. One of the principal reasons advanced by you for excluding that case from the new commission is that the claim is in its nature contractual. If this were true your objection might be sufficiently answered by calling attention to the fact that a purely contractual claim asserted by a citizen of Chile against the United States was entertained by the commission, a demurrer which the agent of this Government made to the same having been overruled.
"I refer to the case of Mr. Trumbull, who filed a claim for $6,000 for service rendered by him as attorney in securing the extradition from Chile of a fugitive from the justice of this country. In point of fact, however, the construction company's claim is not, properly speaking, based upon the contract, but upon conduct of the Chilean Government, amounting to a practical confiscation of its property.
"But the question whether any particular claim is a proper one for the consideration and decision of an international commission is necessarily one which the commission itself must determine. The
conventions under which such commissions are organized usually describe in general terms the class of cases of which the commission is to take jurisdiction, and whether any particular case presented to it comes within this class the commission must, of course, determine. The decisions of the late commission, both interlocutory and final, are binding upon both Governments, the latter absolutely so, the former unless reversed, after proper proceedings for a rehearing. That commission having overruled a demurrer interposed by your Government to the construction company's claim, any. new commission must take up the question just where the former commission left it, subject to the right of your Government to move for a rehearing. It certainly would not be proper to exclude the claims entirely from the considerations of a new commission.”
Mr. Olney, Sec. of State, to Mr. Gana, Chilean min., June 28, 1895, For.
(6) MAJORITY DECISION.
By Art. V. of the Jay treaty, the determination of what was the true river St. Croix under the treaty of peace of 1783 was committed to a board of three commissioners, one to be appointed by each government, and the third to be chosen by the two so appointed. When the American and British commissioners met, they found that there was a variance in the phraseology of their commissions, the former being authorized to render a decision" with the other commissioners," while the British commissioner's commission expressly declared that full effect would be given to any decision made by him "with the other two commissioners" or by "the major part of the said three." Attorney-General Lee, July 26, 1796, 1 Op. 66, had advised the Secretary of State that the concurrence of all three commissioners was necessary to a decision. Neither government, however, accepted this view; and the Attorney-General's opinion was expressly rejected by the United States in instructions to the American commissioner, dated August 22, 1796, with which a copy of the opinion was enclosed. In these instructions Mr. Pickering, who was then Secretary of State, after stating that he had consulted the Secretary of the Treasury and the Secretary of War, said:
"With respect to the operation of the decision of the commissioners, if you proceed to examine and decide the question we are unanimously of the opinion, contrary to that of the Attorney-General, that the determination of any two of the three commissioners (all being met on the business) will be binding on both parties, and for the following reasons:
"1. That the great object of the treaty was to terminate the differences between the two nations; among which was the dispute about the river St. Croix as their boundary.
"2. That the 5th article declares that question shall be referred to the final decision of commissioners to be appointed in the manner therein prescribed:' yet on both sides, the very possible, and even probable dissent of one of the commissioners must have been contemplated when the article was framed.
"3. The parties, therefore, could never have intended to leave it positively in the power of either, against whom the decision should be made, to defeat its operation, by instructing its commissioner to withhold his signature from the declaration signed by the other two. "4. The nature of such transactions between parties at variance confirms the justness of the opinion, that two out of three agreeing, their decision will be binding; for when each has chosen one, or an equal number, another is appointed to insure a majority on one side or the other; one very important object of such an examination of any disputed point being, to bring the controversy about it to an end. This is exemplified in the 6th and 7th articles of the treaty, in which provision is made that three out of the five commissioners shall constitute a quorum for business; and any two of those three agreeing, their decision will be binding. Thus the differences mentioned in these two articles, which must embrace several millions of property, are to be terminated; and it is impossible to believe that two parties would purposely leave the termination of a third subject of difference to depend on the mere chance of unanimity among the arbitrators; especially when the only obvious and conceivable design of the appointment of the third commissioner must have been to insure a decision by the agreement of two out of the three; and when to have rested the final decision on the precarious and even improbable ground of unanimity, would have been evidently to risque the grand effect of the whole negotiation, the continuance of peace, by removing every cause of war."
Moore, Int. Arbitrations, I. 10-12, 751-753.
In instructions to Mr. Welsh, minister to England, of Sept. 27, 1878, concerning the Halifax award, Mr. Evarts raised the question whether the award was vitiated by the fact that it was made by only a majority of the three commissioners. The question presented on the face of the award, viz, whether the concurrence of the three commissioners was required by the treaty, was, said Mr. Evarts, a matter of public discussion in Great Britain and in the provinces, both before and during the sitting of the commission. In this discussion the legal, political, and popular organs of opinion seemed quite positive that unanimity was required by the treaty. In the United States the
matter was little considered, either because the British view of the subject was accepted, or because complete confidence in the merits of the American case superseded any interest in the question. The question involved, first, the text of the treaty, and second, the surrounding circumstances. By the treaty of Washington four boards of arbitration were constituted for the determination of different matters. In respect of three of them, it was expressly provided that a majority should be sufficient for an award. In the case of the Halifax commision, there was no such provision, and the inference from this fact was that it was not intended to invest a majority of that commission with power to make an award. The suggestion that the omission of such a provision was due to inadvertence was not to be lightly entertained, since there was special reason, in the case of the Halifax commission, for adopting every possible guaranty against unreasonable or illusory estimates. Mr. Evarts, however, in submitting this argument, declared that the Government of the United States would regard the maintenance of entire good faith and mutual respect in all dealings, under the beneficent treaty of Washington, as of paramount concern, and would not assume to press its own interpretation of the treaty on the point in question against the deliberate interpretation of Her Majesty's Government to the contrary."
Lord Salisbury, in reply, cited Halleck, Bluntschli, and Calvo, to the effect that the decision of a majority of arbitrators binds the minority, unless the contrary is expressed, and declared that he was not aware of any authorities on international arbitration who could be quoted in the contrary sense. Lord Salisbury also argued that the form of the tribunal, and the manner in which it was constituted, indicated the intention of the contracting parties that a majority of its members should be competent to render an award.
The award was duly paid.
Mr. Evarts, Sec. of State, to Mr. Welsh, min. to England, Sept. 27, 1878,
Senator George F. Edmunds, in the North American Review, 1879, vol.
a Mr. Evarts, Sec. of State, to Mr. Welsh, min. to England, Sept. 27, 1878, For. Rel. 1878, 290.
that the rules of international law are based upon the principles of the Roman civil law. This is due to the fact that international law was first developed by the nations of continental Europe, of whose jurisprudence the Roman civil law is the foundation. If, by general international practice, based on the authority of international law, the concurrence of a majority of a board of arbitrators is sufficient for a decision, the natural inference would be that the United States and Great Britain, in their dealings with each other or with other powers, as independent nations, intended to observe that practice, unless they expressly agreed to disregard it.
By the fifth article of the convention of 1822, "in the event of the two commissioners (on the part of the United States and Great Britain respectively) not agreeing in any particular case under examination, or of their disagreement upon any question which may result from the stipulations of this convention, then and in that case they shall draw by lot the name of one of the two arbitrators, who, after having given due consideration," etc. The commissioners disagreed as to the allowance of interest, but the British commissioner refused to call an arbitrator. It was held that his action was unwarranted. Wirt, At. Gen., 1826, 2 Op. 28.
The Colombian Government and the Cauca Company, an American corporation, agreed to submit certain differences to a special commission composed of three members, one appointed by Colombia, one by the company, and the third by agreement between the Secretary of State of the United States and the Colombian minister at Washington. The commission, under the power vested in it to "determine" its "procedure," resolved that all decisions should be by majority vote. At the end of the hearing, when little remained to be done but the signing of the award, the Colombian commissioner resigned. The potential existence of the commission was limited to 210 days, and 203 days had already elapsed. The two remaining members then rendered an award. Held, that the award was sufficient and effective. Colombia v. Cauca Co. (1902), 190 U. S. 524.
(7) RULES OF DECISION.
"Decisions of international commissions are not to be regarded as establishing principles of international law. Such decisions are molded by the nature and terms of the treaty of arbitration, which often assumes certain rules, in themselves deviations from international law, for the government of the commission. Even when there are no such limitations, decisions of commissions have not heretofore been regarded as authoritative, except in the particular case decided.